Alexander Livnat, Ph.D.

12/18/2014

This is the first out of five volumes describing EPA’s current state of knowledge of CCR damage cases. 

This volume comprises 40 damage case-specific modules. Each module contains background 

information on the host power plant, type and design of the CCR management unit(s), their 

hydrogeologic setting and status of groundwater monitoring system, evidence for impact, regulatory 

actions pursued by the state and remedial measures taken, litigation, and rationale for the site’s 

current designation as a proven damage case in reference to pre-existing screenings. Ample footnotes 

and a list of references provide links to sources of information.
I. CCR Proven Damage Cases December 2014

1

I. Coal Combustion Residuals

Proven Damage Case 

(Cases PR01 to PR40)
I. CCR Proven Damage Cases December 2014

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Table of Contents 

PR01. Georgia Power Company, Plant Bowen, Cartersville, Bartow County, Georgia..............................4

PR02. Indianapolis Power & Light Company (IPL) Eagle Valley Plant, Martinsville, Morgan County, 

Indiana ..........................................................................................................................................................7

PR03. Gibson Generating Station Plant, Duke Energy (Cinergy), Princeton (NW of Owensville), Gibson 

County, Indiana...........................................................................................................................................11

PR04. Northern Indiana Public Service Corp. (NIPSCO) Yard 520 Landfill Site (Brown's Landfill), 

Township of Pines, Porter County, Indiana ................................................................................................17

PR05. Constellation Energy’s BBSS Sand and Gravel Quarries, Gambrills, Anne Arundel County, 

Maryland.....................................................................................................................................................25

PR06. PEPCO (Mirant, GenOn, NRG) Morgantown Generating Station Faulkner Off-Site Disposal 

Facility, Morgantown, Charles County, Maryland .....................................................................................32

PR07. Detroit Edison Range Road Landfill, St. Clair, East China Township, St. Clair County, Michigan

....................................................................................................................................................................41

PR08. JR Whiting Generating Plant, CMS Energy – Consumers Energy, Erie, Monroe County, Michigan

....................................................................................................................................................................43

PR09. North Lansing Landfill, Lansing Board of Water & Light (LBWL), Lansing, Ingham County, 

Michigan .....................................................................................................................................................49

PR10. Colstrip Power Plant PPL Montana (Avista, PPL Montana LLC, Portland General Electric 

Company, PacifiCorp, NorthWestern Energy LLC, and Puget Sound Energy), Colstrip, Rosebud County, 

Montana ......................................................................................................................................................51

PR11. Reid Gardner Generating Facility, Nevada Energy, Moapa, Clark County, Nevada......................64

PR12. Cayuga Coal Ash Disposal Landfill - AES, Lansing, Tompkins County, New York ....................68

PR13. Don Frame Trucking, Inc. Fly Ash Landfill, Pomfret, Chautauqua County, New York ................73

PR14. Belews Lake, Stokes, Rockingham, Guilford, and Forsyth Counties, North Carolina ...................76

PR15. Dan River Steam Station, Duke Energy, Eden, Rockingham County, North Carolina ..................79

PR16. Hyco Lake, Roxboro, Person County, North Carolina ...................................................................83

PR17. Swift Creek Structural Fill Site ReUse Technology, Inc. /Full Circle Solutions, Inc., Rocky 

Mount, Nash County, North Carolina.........................................................................................................88

PR18. Conesville Fixed FGD Sludge Landfill, American Electric Power (AEP), Ohio ...........................91

PR19. Bruce Mansfield Power Station’s Little Blue Run Surface Impoundment, FirstEnergy, 

Shippingport, Greene Township, Beaver County, Pennsylvania and Grant District, Hancock County, West 

Virginia .......................................................................................................................................................95

PR20. Fern Valley Landfill, Orion Power Holdings, Inc., Elrama, Jefferson Borough, Allegheny County, 

Pennsylvania .............................................................................................................................................107
I. CCR Proven Damage Cases December 2014

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PR21. Hatfield’s Ferry Power Station, Allegheny Energy Supply (AES) Company, Masontown, Fayette 

County, Pennsylvania ...............................................................................................................................114

PR22. Martins Creek Power Plant 2005 Release, Mount Bethel Township, Northampton County, 

Pennsylvania .............................................................................................................................................123

PR23. South Carolina Electric & Gas (SCE&G) Canadys Plant, Walterboro, Colleton County, South 

Carolina.....................................................................................................................................................129

PR24. DOE Savannah River Project, U.S. Department of Energy, Aiken, Allendale and Barnwell 

Counties, South Carolina ..........................................................................................................................133

PR25. Urquhart Station, SCANA, dba South Carolina Electric & Gas Company (SCE&G), Beech Island, 

Aiken County, South Carolina..................................................................................................................136

PR26. TVA Kingston Fossil Fuel Plant, Harriman, Roane County, Tennessee ......................................140

PR27. DOE Oak Ridge Y-12 Plant Chestnut Ridge Operable Unit 2, Department of Energy, Oak Ridge, 

Tennessee..................................................................................................................................................154

PR28. Coal Combustion Waste Landfill, Trans-Ash, Inc., Camden, Benton County, Tennessee............157

PR29. Brandy Branch Reservoir, Marshall, Harrison County, Texas .....................................................163

PR30. Martin Lake Reservoir, Texas Utilities Electric, Tatum, Rusk and Manola Counties, Texas......166

PR31. Southwestern Electric Power Company Welsh Reservoir, Mount Pleasant, Titus County, Texas

..................................................................................................................................................................170

PR32. Clinch River Plant, American Electric Power – Appalachian Power Company, Cleveland, Russell 

County, Virginia .......................................................................................................................................173

PR33. Appalachian Power Company, Glen Lyn, Giles County, Virginia ...............................................177

PR34. Virginia Power Yorktown Power Station Chisman Creek Disposal Site, Yorktown, York County, 

Virginia .....................................................................................................................................................182

PR35. John E. Amos Power Plant, Appalachian Power, Winfield, Putnam County, West Virginia .......185

PR36. WEPCO Cedar-Sauk Landfill, Cedarburg, Ozaukee County, Wisconsin.....................................191

PR37. Columbia Energy Center, Alliant Energy – Wisconsin Power and Light Company, Pardeeville, 

Columbia County, Wisconsin ...................................................................................................................195

PR38. WEPCO Highway 59 Landfill, WE Energies, Waukesha, Waukesha County, Wisconsin ..........199

PR39. Oak Creek Power Plant, Wisconsin Energy (WE) – Wisconsin Electric Power Company, Oak 

Creek, Racine County, Wisconsin ............................................................................................................202

PR40. E.J. Stoneman Generating Station Ash Disposal Pond, Dairyland Power Cooperative, Cassville 

Ash Disposal Site, Grant County, Wisconsin ...........................................................................................207
I. CCR Proven Damage Cases December 2014

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PR01. Georgia Power Company,1 Plant Bowen, Cartersville, Bartow County, Georgia2

Type: Surface Impoundment Punctured by a Sinkhole; Failure of a Dry-Ash Stockpile.

Brief Description: The 250-acre, originally unlined Plant Bowen Ash Pond was put in service in 1968. 

In 1992 and again in 2001, Georgia Power developed Ash Stacking Plans to expand the capacity of the 

facility and transition from wet process disposal to dry disposal.3 A cooling water impoundments contains 

water pumped from the Etowah River for use as cooling water in the Plant. Other, much smaller 

impoundments capture and control storm water runoff in the coal pile area and the waste gypsum coal 

combustion by-product storage facility located to the east of the steam plant and cooling water pond. 

These impoundments store water intermittently and do not contain CCRs.

After completion of a 2003 slope stability study, the Plant converted to a dry stack operation, reducing the 

wet CCR processing area to two small dewatering cells, two gypsum settling ponds, and a water recycle 

pond. The company has taken steps to reduce potential sinkhole conditions although karst geology 

conditions underlying the surface impoundment remain.4

Discharges from the Plant Bowen Ash Pond are under the jurisdiction of the Georgia Department of 

Natural Resources Environmental Protection Division (DNR/EPD). The Plant was issued by DNR/EPD 

Permit No. GA0001449 authorizing discharge under the National Pollutant Discharge Elimination System 

(NPDES) to the Euharlee Creek and Etowah River (Coosa River Basin).5

The Plant Bowen Ash Pond lies within the Valley and Ridge physiographic providence about three to 

four miles north of the Cartersville Fault. The Cartersville Fault separates the late Precambrian-aged 

metamorphic rocks to the east and south from the Cambrian-aged sedimentary rocks to the north and 

west. The Ash Pond lies within an area mapped primarily as Knox Group undifferentiated. The Knox 

Group produces a characteristic orange to red clayey residuum, often cherty, that ranges in thickness from 

ten to a hundred feet or more. The carbonate rocks beneath the Plant Bowen Ash Pond are typical of the 

Knox Group which abounds in karst-controlling features such as lineaments and sinkholes. The soils 

underlying the Ash Pond and embankment are residual, formed from the in-situ weathering of the 

underlying dolomite and limestone. The soils were noted as varying from a fine, sandy clayey silt to silty 

clay. Permeability of the material was reported as varying from about 1 x 10-6to 1 x 10-8cm/sec. 

Thickness was also found to vary from about 19 feet to 127 feet at the Plant Bowen site.6

Impact: On July 28, 2002, a sinkhole developed in the surface impoundment that ultimately reached four 

acres in area. An estimated 2.25 million gallons of ash/water mixture was released to a tributary of the 

Euharlee Creek, containing 281 tons of ash. Approximately 80 tons of ash entered Euharlee Creek 

 

1 Georgia Power Company is a subsidiary of Southern Company.

2 Plant Bowen is located in 317 Covered Bridge Rd., Cartersville, GA 30120, about 40 miles northwest of Atlanta. 

Plant Bowen has the largest generating capacity of any coal-fired power plant in North America. The Plant’s

Nameplate Capacity is 3,499 MW, and it comprises four generation units (in-service year in parenthesis): 806 MW 

(1971), 789 MW (1972), 952 MW (1974), and 952 MW (1975). Plant Bowen has been burning Bituminous coal 

from Kentucky, Virginia and West Virginia mines. (EIA, 2009). At full operation, Plant Bowen burns over 26,000 

tons of coal per day. The Plant uses a closed-loop cooling system with cooling towers (Southern Company, no date, 

apparently 2007).

3 CHA (2009).

4 According to CHA (ibid), the areas containing liquid have been lined with geosynthetic clay liners (GCL) or 

HDPE liners, and/or clay soil liners.

5 According to CHA (2009), the permit was valid between November 9, 2007 and June 30, 2010. 

6 CHA (ibid).
I. CCR Proven Damage Cases December 2014

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through a stormwater drainage pipe, resulting in deposition of an ash blanket up to 8 inches deep over 

some 1,850 square feet of the stream bottom.7

Following the delineation of the extent of the ash release four samples were collected within the ash 

footprint and two samples were collected downstream of the ash deposit. Samples collected within the ash 

footprint in the creek indicate that concentration of certain metals (arsenic, cadmium, chromium, copper, 

lead, mercury, and nickel) exceeded EPA Region IV ecological sediment screening values (ESV'S) 

indicating a potential for ecological affects to aquatic life. Sediment concentrations of arsenic were 

measured at 14ppm dry weight, a level that is over five times the toxic threshold. Biological sampling 

indicated that benthic organisms in the tributary and ash deposition zone of Euharlee Creek were either 

killed by contaminants or physically smothered. The resident fish community, which consisted of at least 

25 species, was displaced due to the irritation of high turbidity in the ash plume as it moved through 

during the spill event. One month after the spill, concentrations of selenium and cadmium were elevated 

in crayfish, clams, mollusks, and insects at a downstream site in Euharlee Creek.8, 9

An Ecological Impact-Assessment prepared by a utility’s contractor shortly following the incident 

(September 27, 2002) states:10 “it is likely that all but the most tolerant epifaunal (surface dwelling) and 

infaunal benthic organisms expired due to physical impact of settling ash....It also predicted that the 

potential impacts associated with removing the ash are few, relatively minor, and temporary.”

On September 9, 2008, ash was released from the Plant Bowen property during a heavy rain event (1.26” 

in less than a 45 minute period). The ash release was due to failure of the slope of a dry ash stockpile 

during the rain event. Storm water overwhelmed perimeter ditching in the ash pond and carried ash off of 

plant property to the north, to a storm water conveyance and across several adjacent properties where it 

was deposited in a sediment pond. From the sediment pond, some of the ash reached Euharlee Creek. 

Georgia Power Company estimated that 40 tons of ash was released with about two tons of ash reaching 

Euharlee Creek. Approximately 14 offsite properties in the neighborhood were affected by the release.

The ash spill at Plant Bowen was cleaned up as a CERCLA removal action.11

According to Lesley and Froelich (2003), ‘historic samples of surface waters receiving Plant Bowen ash 

effluent were among the most metalloid contaminated waters in the world. Since conversion of the plant 

to dry ash disposal the contamination has disappeared.’12

 

7 The Euharlee Creek is a tributary of the Etowah River: for additional information on the 2002 ash release, see 

Lesley and Froelich (2002), virtual pages 110-115.

8 Lemly (2010) and references therein. Lemly (ibid) estimated the monetized damage at $6.1 million

9 The ash was removed from the creek by mid-October, 2002.

10 http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0026.

11 An undated Release Report, and Ash Sampling and Cleanup Report, Sept. 14, 2008. Attachments to an email 

from B. Cuthbertson to A. Livnat, EPA/OSWER, July 13, 2011.

12 For details, see Lesley and Froelich (2002). Sampling between May 2001 and June 2002, established and 

quantified the flux of the toxic metalloids arsenic, selenium, and antimony from the Bowen Plant’s ash ponds to 

local receiving waters. Calculation of metalloid escape efficiencies have shown that 4.1 tons of arsenic, 1.7 tons of 

selenium, and 0.9 tons of antimony were released to the environment in the dissolved reactive form during the year 

of the study. Detailed mass balance models of metalloid fate in the riverine environment revealed that there is also a 

metalloid flux from ash ponds in the form of solid ash material. These fluxes are 10.1 tons of arsenic, 1.4 tons of 

selenium, and 0.1 tons of antimony released on ash material during the year of the study. Over the course of 20 years 

the combined dissolved and solid releases have amounted to 284 tons of arsenic, 62 tons of selenium, and 20 tons of 

antimony. Mass balance has shown that over the year of the study, 8.7 tons, 1.0 tons, and 0.5 tons of arsenic, 

selenium, and antimony, respectively, entered the biological system, which is the primary sink of metalloids in 

contaminated rivers.
I. CCR Proven Damage Cases December 2014

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Previous (2007) Basis for Consideration: Scientific: Unpermitted discharge of water containing ash 

slurry into the Euharlee Creek resulting in a temporary degradation of public waters. Administrative:

Georgia Department of Natural Resources issued a consent order requiring, among others, a fine and 

corrective action.

Resolution: In reference to the 2002 event, Georgia’s Department of Natural Resources (GDNR) alleged 

that an unpermitted discharge of water containing approximately 80 tons of ash slurry entered Euharlee 

Creek through a stormwater drainage pipe resulting in a temporary degradation of public waters. GDNR 

issued Consent Order to investigate impacts to surface waters, perform engineering assessment, and enact 

necessary corrective actions based on studies. Remedies included suction dredging of ash from creek, and 

grouting and filling of sink hole. As of 2005, some coal ash from the Bowen Plant was being disposed in 

a landfill. 

For the 2008 spill, GPC paid a $35,000 in penalty, and completed all the requirements of a Georgia 

Environmental Protection Division consent order by March 2009,13 including the removal of ash from 

residential properties within 30 days. However, ash was never removed from Euharlee Creek.14

ICF (2010) Rationale: Proven Damage. The 2002 spill involved <limited release of coal ash reported 

to effect adjacent surface waters requiring removal of sediments. No long term ongoing risk. 

Administrative action does not have explicit finding of specific damage but requires investigation and 

assessment.> The 2008 spill, while involving a limited release of coal ash into adjacent surface water, 

also carried coal combustion ash unto some 14 off-site private properties.

References

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

ICF, 10/2010, Appendix A, Case #8.

Lemly (2010): A White Paper on Environmental Damage from Coal Combustion Waste: The Cost of 

Poisoned Fish and Wildlife, A. Dennis Lemly, EPA Docket ID No. EPA–HQ–RCRA–2009–0640, 

December 15, 2010. Accessed Online June 2012.

http://prairierivers.org/wp-content/uploads/2012/03/Lemly-2010-Environmental-Damage-from-CCW.pdf 

CHA (2009): Assessment of Dam Safety Coal Combustion Surface Impoundments, Redacted Draft Final 

Report, Georgia Power Company Plant Bowen, Cartersville, Georgia, September 14, 2009. Accessed 

Online June 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm#G

EPA (2007): Coal Combustion Waste Damage Case Assessments, Case #8, docket ID EPA-HQ-RCRA2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007. 

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

Lesley and Froelich (2003): Arsenic, Selenium, and Antimony: from Coal Fired Power Plants to the 

Chattahoochee River, M. Patrick Lesley and Philip N. Froelich. Proceedings of the 2003 Georgia Water 

Resources Conference, held April 23-24, 2003, at the University of Georgia. Accessed Online September 

2014.

from coal fired power plants to the chattahoochee river

 

13 EPA surveys Plant Bowen coal ash pond as part of national study, September 12, 2009, Rome News-Tribune:

http://www.northwestgeorgianews.com/rome/news/epa-surveys-plant-bowen-coal-ash-pond-as-partof/article_0a28775f-770a-5e72-aa76-689f40fc5ea7.html

14 Lemly (2010).
I. CCR Proven Damage Cases December 2014

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Geosyntec Consultants (2002): Ecological Assessment of Ash Deposition and Removal, Euharlee Creek, 

Georgia Power Bowen Plant, September 2002, Geosyntec Consultants, EPA-HQ-RCRA-2006-0796-

0026. 

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0026

Lesley and Froelich (2002): The Fluxes and Fates of Arsenic, Selenium, and Antimony from Coal Fired 

Power Plants to Rivers, School of Earth and Atmospheric Sciences, Georgia Institute of Technology, 

Michael Patrick Lesley and Philip N. Froelich, Jr., a report sponsored by Georgia Water Resources 

Institute and The U.S. Geological Survey, October 2002. Accessed Online September 2014.

Progress/Completion Report PDF - Water Resources of the ...

Southern Company (no date, apparently 2007): Georgia Power’s Plant Bowen Environmental 

Management System, Southern Company, a Power Point Presentation. Accessed Online August 2014.

GA Power's Plant Bowen EMS.pdf - cscaweb.org

PR02. Indianapolis Power & Light Company (IPL) Eagle Valley Plant,15 Martinsville, 

Morgan County, Indiana

Type: Dam Failure, Surface Impoundments.

Background and Description: Eagle Valley (EV) Generating Station, located five miles north of 

Martinsville, Indiana,16 comprises five unlined surface impoundments.

17 The EV Station has experienced

 

15 According to Earthjustice et al., comment to the proposed CCR rule docket: EPA-HQ-RCRA-2009-0640-6314 

(Analysis of EPA and EIP/Earthjustice Damage Cases: The Extent of Damage from CCR Disposal is Significant, 

Pervasive and Growing/ J. Russell Boulding, Attachment B: Additional Documented and Potential Damage Cases), 

this power plant was formerly called the H.T. Pritchard Station.

16 The EV Generating Station (4040 Blue Bluff Rd, Martinsville, IN 46151; 344 MW Name Plate Capacity) began 

operation about February 1949. There are four generating units: Unit 3 (on line since 1949, 50 MW), Units 4 and 5 

(on line since 1953, 69 MW each), and Unit 6 (online since 1956, 114 MW). Approximately 1,900 tons of coal is 

burned daily producing approximately 190 tons of CCR. According to the Reporter Time (2007), 990,000 of the 

company’s 1.4 million-ton 2005 ash production was “beneficially reused” as a component of concrete or as a raw 

building material.

According to SourceWatch (2013) and Media Release (2014), in May 2013 IPL announced that the EV Station 

will be retired, with a 650 MW combined cycle gas turbine (CCGT) to be constructed at the same site by 2017. 

According to Indiana Public Media (2014), the ground- breaking for the new plant took place in September 2014.

17 CDM (2010), Appendix A. The impoundments at the EV Generating Station currently are used as settling ponds

for CCR and associated plant wastes. According to CDM (ibid), the west impoundments consists of Pond A, Pond 

B, and Pond C. Pond A, Pond B, and Pond C are approximately 19, 13, and 8 acres in size, respectively. Pond B is 

used as a secondary pond for finer material to settle out. Pond B is connected to Pond C, which is used as a final 

settling pond (‘polishing’) before water is discharged into the discharge canal at Outfall 103. Water from Pond B 

and Pond E is conveyed to Pond C.

The east impoundments consist of Pond D and Pond E. Pond D and Pond E are approximately 16 and 4 

acres in size, respectively. At the time of CDM’s April 2010 survey, Ponds D and E were dry and undergoing repairs 

following the 2007 and 2008 dike failures. The repair plans indicated that the compacted ash will be covered with a 

12-inch-thick layer of compacted clay and a 4-inch-thick topsoil layer. A conduit consisting of 30-inch-diameter 

HDPE pipe with 8-foot-square anti-seep collars at 50-feet on center was to be constructed through the compacted 

ash in Pond E to the existing inlet structure in the northwest corner of the pond. Water from Pond D will be diverted 

through the conduit to the outlet structure and into Pond C. IPL Pond D was anticipated to be used on an 

“emergency” basis or when Pond A and Pond B need to be taken offline for maintenance. 
I. CCR Proven Damage Cases December 2014

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two breaches of the levee system (in 2007 and 2008) allowing unpermitted discharges to surface waters of 

the United States (the West Fork of the White River). 

The IPL EV Generating Station was issued a permit (No. IN0004693) under the National Pollutant 

Discharge Elimination System (NPDES) authorizing discharge to the White River in accordance with 

effluent limitations, monitoring requirements, and other conditions set forth in the permit. The station’s 

most recent permit expired December 31, 2011.18

The site is located south of the White River. The area north of the discharge canal and the west 

impoundments are located within the 100-year floodplain. The site is located within a glacial valley 

created by the erosion of the bedrock hills and the deposition of sand and gravel by glaciers and by the 

White River and Indian Creek. The immediate subsurface generally comprises 1 to 14 feet of lean clay 

underlain by deposit of sand and gravel with variable amounts of clay down to bedrock. The bedrock in 

the vicinity of the site consists of soft shale at anticipated depths of approximately 100 to 120 feet below 

natural grade.19

Impact and Damage Claims: On February 14, 2007, EV Generating Station released approximately 30 

million gallons of ash sluice water to the IPL discharge canal which then entered the White River as an 

unpermitted release. Following the failure, Ponds D and E were repaired and brought back in service by 

December 2007. On January 30, 2008, the internal divider embankment failed again in a similar manner 

to the first failure causing the embankment of Pond E to overtop, releasing again approximately 30 

million gallons of ash sluice water to the IPL discharge canal which then entered the White River as an 

unpermitted release.20 In both incidents IPL believes that both an internal and then an external levee 

breached at the EV Generating Station prompting the release.21

Sampling conducted by an independent lab for IDEM detected trace metals in the White River after the 

incident. Contaminant levels were elevated downstream from the spill.22 The roughly 30 million gallons 

 

The original CCR impoundment was commissioned in 1949, in the vicinity of the footprint of current 

Ponds A, B and C to the west of the Indiana Southern Railroad tracks. In 1956, an impoundment was commissioned 

east of the railroad in the current footprint of Ponds D and E. Both groups of impoundments have been since 

reconfigured and/or had their dikes raised. In about 1991, the west impoundments were reconfigured to create the 

current footprint of Ponds A, B and C. In about 1979/1980, the west pond was established within the existing 

footprint of the impoundment. From about 1981 to 1982, the east impoundment (Ponds D and E) was unofficially 

capped and regarded. In about 1991, the current configuration of Ponds A, B, and C was commissioned. In 2000, the 

east impoundment (Pond D) was reactivated. The embankment around the pond was regarded. In 2003, Pond D was 

reconfigured to form Ponds D and E by creating an internal divider embankment (using compacted ash) that runs 

east to west. In 2005, the embankment around the perimeter of Pond D was raised using compacted ash. For 

additional information on the impoundments, see CDM (ibid) and Indianapolis Power & Light (2009).

18 CDM, ibid.

19 CDM, ibid.

20 Indianapolis Power & Light, ibid.

21 CDM, ibid. The internal divider embankment between Ponds D and E failed causing the north embankment of 

Pond E to overtop. A Causal Analysis report prepared by BT SQUARED attributed the February 2007 failure of 

divider embankment D/E to slope instability combined with piping erosion of the flyash at the north toe of divider 

embankment D/E. BT SQUARED attributed the January 2008 failure to the repair designed by Fuller, Mossbarger, 

Scott, and May Engineers (FMSM) in that they overestimated the shear strength of the flyash. BT SQUARED 

concluded the redesigned embankment cross-section by FMSM was inadequate to support the loading conditions in 

Pond D and Pond E.

22 According to Earthjustice et al., comment to the proposed CCR rule docket: EPA-HQ-RCRA-2009-0640-6314, 

limited sampling within twelve hours of the spill found all metals except zinc upstream from the spill below the 

detection limit, whereas elevated levels of arsenic, chromium, copper, lead, nickel and zinc were noted in the canal 

down from the spill before it reached the White River. Approximately 36 hours later the canal down from the spill 
I. CCR Proven Damage Cases December 2014

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of water mixed with metals that spilled into the White River in February 2007 was deemed to not be a 

health hazard by both Indiana Department of Natural Resources and Indiana Department of 

Environmental Management.23

Resolution: Following both dike failures and slurry spill incidents, none of the released material was 

recovered. Timely reports were made to the Indiana Department of Environmental Management (IDEM), 

Indiana Department of Natural Resources (IDNR), National Response Center (NRC), and the Morgan 

County Local Emergency Planning Commission.24 Both IDEM and IDNR representatives were on-site 

after the breach occurred to observe IPL response action steps and provide regulatory direction. 

Following the February 2007 spill, the external levee was plugged within 30 hours after the initial failure 

occurred. The remedial action undertaken was the repair of the levee.

Following the January 2008 spill, the external levee was plugged within 12.5 hours after the initial failure 

occurred. On December 30, 2008, IPL submitted a root causal analysis associated with the second levee 

breach and levee repair recommendations to IDEM.25 In addition, IPL initiated external qualified 

professional inspections of all of its levees in June 2008. IPL continues to conduct the external levee 

inspections on all of its levees on a semi-annual basis.

As a result of the two dike breaches, IPL entered into an Agreed Order with IDEM on April 22, 2008.26

IDEM assessed IPL a $23,800 civil penalty. It also required IPL to study the site, submit its findings to 

IDEM, implement repairs, and follow up with regular inspections. Failure to comply with IDEM’s 

timeline would subject IPL to $500-per-week penalties. As part of the Agreed Order requirements, IPL 

submitted a detailed study of the levee breaches, performed by BT SQUARED, Inc., and associated 

recommendations to IDEM December 19, 2008.27

On January 29, 2010, IPL filed a federal suit against FMSM,

28 to assign responsibility and liability for the 

second spill to the engineering consultant.29 IPL seeks compensatory damages, as well as the costs and 

fines it incurred responding to the second effluent spill. IPL alleges it hired FMSM to examine the breech, 

supervise its repair, and improve EV’s dike system to avoid future accidents. But on January 30, 2008, 

EV’s dike system failed again. IDEM investigated both incidents, and found the second levee breech 

 

still had elevated levels of zinc, and TCLP leach tests of a sediment sample at boat ramp in the White River below 

the spill had zinc at 0.18 mg/L, exceeding the EPA water quality criteria of 0.012 mg/L for chronic exposure to 

microorganisms.

23 Nuvo (2010). A citizens’ group representative suggested, however, that ash did impact downstream water quality 

to levels adverse to fish and other aquatic life, and that more testing should have been required by the state.

24 According to the Reporter Time (2007), the February 2007 incident was determined not to be a violation because 

IPL followed procedure by notifying IDEM and DNR of the spill. Because the levee breach was accidental and 

proper action was taken, no violation was recorded and no fines have been issued.

25 BT SQUARED provided the second remedial design in 2008. The remedial design by BT SQUARED includes 

the installation of a 30-inch-diameter HDPE pipe with 8-foot square HDPE anti-seep collars at 50-feet on center 

through the compacted ash in Pond E. The construction was ongoing at the time of the site visit in late April 2010. 

Construction was anticipated to be completed in the summer of 2010.

26 IDEM (2008): Commissioner of Department of Environmental Management v. Indianapolis Power and Light Co., 

Agreed Order, Case No. 2007-16780-W, 2008-17693-W, April 18, 2008.

27 Feasibility Analysis for Use of D-Pond for Future Processing of Ash Slurry Indianapolis Power & Light - Eagle 

Valley Plant Martinsville, Indiana. Letter from David M. Hendron, P.E., Senior Manager, BT SQUARE to Mr. Rick 

Jacobs, Indianapolis Power & Light Company, December 18, 2008. Comments from Facility on Eagle Valley

Generating Station.

28 FMSM was acquired in 2008 by Alberta, Canada-based Santec Inc.

29 Courthouse News Service (2010) and IBJ (2010).
I. CCR Proven Damage Cases December 2014

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occurred in the same location as the first. 

Rationale for a Proven Damage Case: IPL released twice within one year large amounts of CCR 

slurry into the White River. Whereas no specific water quality data is available and there is no record of 

an immediate ecologic impact (e.g., fish kill), the release violated the conditions of EV’s NPDES Permit.

References

Indiana Public Media (2014): IPL Breaks Ground On Natural Gas Plant in Martinsville. Indiana Public 

Media News, September 4, 2014. Accessed Online September 2014.

http://indianapublicmedia.org/news/ipl-breaks-ground-natural-gas-plant-martinsville-71466/

Media Release (2014): IPL’s Plans to Build State-of-the-Art Natural Gas Plant Move Ahead. Media 

Release, May 14, 2014. Accessed Online September 2014.

http://www.sec.gov/Archives/edgar/data/728391/000072839114000011/exh991.htm

SourceWatch (2013): Eagle Valley Station, last modified on 9 May 2013. Accessed Online September 

2014

http://ftp.sourcewatch.org/index.php?title=Eagle_Valley_Station#cite_note-1

CDM (2010): Assessment of Dam Safety of Coal Combustion, Surface Impoundments, Indianapolis 

Power & Light – Eagle Valley Generating Station, Martinsville, Indiana, Final Report, Prepared for:

U. S. Environmental Protection Agency, Washington, D. C., November 15, 2010.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm#I

Courthouse News Service (2010): Utility Blames Engineers for Giant Ash Spill. Courthouse News 

Service, February 2, 2010. Accessed Online October 2014.

http://www.courthousenews.com/2010/02/02/24288.htm

IBJ (2010): IPL sues engineering consultant over Eagle Valley discharge, Indianapolis Business 

Journal, February 6, 2010. Accessed Online September 2014.

http://www.ibj.com/ipl-sues-engineering-consultant-over-eagle-valley-discharge-/PARAMS/article/16222

Nuvo (2010): Waste in our water: The coal ash problem. March 31, 2010. Accessed Online September 

2014.

http://www.nuvo.net/indianapolis/waste-in-our-water-the-coal-ash-problem/Content?oid=1333657

Indianapolis Power & Light (2009): Response to U.S. EPA 104(e) Information Request to

Indianapolis Power & Light Company ("IPL") - Eagle Valley Generating Station, May 13, 2009.

Accessed Online September 2014.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm

IDEM (2008): Agreed Order, State of Indiana, County of Marion, Commissioner of the Department of 

Environmental Management, Complainant, v. Indianapolis Power & Light Co., Respondent, Case No. 

2007-16780-W, 2008-17693-W.

http://www.state.in.us/idem/oe/cause/AO/17693-W.htm

Reporter Times (2007): Breach raises monitoring issues, Groups split on effects of fly ash on water 

system. Reporter Times, Martinsville and Morgan County, Indiana, February 18, 2007. Accessed Online 

September 2014.

http://ww.reporter-times.com//stories/2007/02/18/news.39236.sto?code=384cc136-48dc-11e4-8c2f1bfe2ea5c944
I. CCR Proven Damage Cases December 2014

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PR03. Gibson Generating Station Plant, Duke Energy (Cinergy), Princeton (NW of 

Owensville), Gibson County, Indiana

Type: Surface Impoundments, Cooling Pond, and Landfills.

Background and Description: Gibson Generating Station30 comprises six unlined surface 

impoundments (four ash ponds and two settling/decant basins), occupying jointly 423 acres;31 a 3,490-

acre cooling lake;32 and a Type II restricted waste (CCR) landfill. The Type II Restricted Waste landfill 

consists of a (i) 94-acre older portion built in the late 1970s which is unlined, and (ii) a 43-acre portion for 

Fixated Scrubber Sludge built in 2002, which is sited over a portion of the North Ash Pond (‘overfill’) 

and is contiguous with the old landfill. This new landfill extension has a composite liner and leachate 

collection system. Finally, the 400 acres South landfill, permitted late in 2005, also has a composite liner 

and leachate collection system. 

Bottom ash, boiler slag, flue gas emission control residuals and other waste (e.g., landfill leachate, water 

treatment, boiler blow down, storm water runoff, and mill rejects) from all the Plant’s five generating 

units, as well as fly ash from generating units 1 - 3 are wet sluiced to North Ash Pond (where primary 

settling occurs) and into East Ash Ponds #1, #2, and #3. CCRs are periodically scooped out of the 

impoundments and sent to the two on-site CCR landfills. Fly ash from generating units 4 and 5 is 

collected dry and managed in onsite landfills. All process water generated at the power plant is managed 

in a closed-loop pond system (excess water is discharged into the cooling lake). Hence, the 

impoundments do not have National Pollution Discharge Elimination System (NPDES) permits.

33 IDEM 

considers the surface impoundments as temporary CCR storage areas that are exempt from solid waste 

regulations.

The site is located in the Wabash Lowland Physiographic Unit. Glacial outwash sediments consisting of 

sands and gravels exist in the Wabash River Valley. These unconsolidated sediments vary in thickness 

from 50 to 150 feet in this area. Windblown soils and river alluvium sediments cover the glacial deposits. 

The glacial deposits are underlain by Pennsylvanian age shales and sandstones.34

The unlined landfill is separated from the local aquifer (90 feet of sand and gravel) by 5-8 feet-thick, local 

clay soil. The impoundments are about one mile east of the Wabash River. Natural groundwater flow is 

 

30 Gibson Generating Station is the third largest power plant in the world with 3,145 MW of generating capacity. It 

is a five-unit facility that was built between 1976 and 1982. Unit 5 is co-owned by Wabash Valley Power 

Association and Indiana Municipal Power Agency. All five units have sulfur dioxide scrubbers. (Duke Energy: 

Gibson Station: http://www.duke-energy.com/power-plants/coal-fired/gibson.asp).

31 GEI (2010). The North Ash Pond, North Settling Basin, East Ash Ponds #1, #2, and #3, and the East Settling 

Basin. In addition, GEI (2010, Section 1.1) makes a brief reference to “the South Ash Pond and Basin, which have 

been closed under Indiana Beneficial Use Statute IC-13-19-3-3.”

The following information, derived from Duke (2009), provides the commissioning year, surface area, total 

storage volume, and available capacity as of January 2009 for each of the Gibson Plant’s six surface impoundments: 

North Ash Pond: 1974, 25 acres, 350 acre/feet, 50 percent; North Settling Basin:1974, 10 acres, 150 acre/feet, 70 

percent; East Ash Pond #1: 1991, 105 acres, 1733 acre/feet, 5 percent; East Ash Pond #2: 1995, 105 acres, 1733 

acre/feet, 50 percent; East Ash Pond #3: 1999, 133 acres, 3325 acre/feet, 5 percent; and East Ash Pond Settling 

Basin: 1991, 45 acres, 743 acre/feet, 80 percent.

32 A man-made lake constructed in 1972, ponded by a soil dike. 

33 Once operations cease, however, the power plant is required to follow the solid waste land disposal rules for 

closure.

34 GEI (ibid, Section 6.0).
I. CCR Proven Damage Cases December 2014

12

generally to the west, towards the river.

35 Groundwater monitoring is required at both landfills. The Type 

II (‘Old’) landfill has 17 monitoring wells, two designated as up-gradient and 15 designated as downgradient. However, IDEM has conceded that the current wells designated as up-gradient are too close to 

the landfill to be reliably considered up-gradient. In contrast, groundwater monitoring at the unlined 

impoundments is limited to only one peizometer located near the impoundments, and results from this are 

not reported to the state. 

Sizeable wetland habitats are adjacent to the site. Gibson Lake and wetlands are part of a designated 

Important Bird Area (IBA) and are vital habitat and migration grounds for numerous bird species, 

including the largest nesting colony of the endangered interior least tern east of the Mississippi River. 

Over 380 species of wildlife have been observed on the refuge.36

Impact and Damage Claims: The Gibson Power Station is implicated in impacts to groundwater, 

surface water and the ecology, as well as being a source of uncontrolled fugitive dust.

Groundwater: Wells down-gradient from the Old Landfill have high levels of arsenic, boron, iron, and 

manganese.37 Twelve wells in the hamlet of East Mount Carmel, Indiana, that supply drinking water to a 

bait shop, a church, and 10 trailer homes have been contaminated with boron, manganese, iron, sulfate, 

sodium, and TDS.

38

 Drinking water contamination from boron, iron, and manganese has been 

documented in at least nine off-site private residential wells sampled in the fall of 2007 by Duke Energy 

and the fall of 2008 by the Natural Resources Defense Council.

39 Test results in the second round of 

sampling (2008) found very high levels of sodium: the average concentration was 139 mg/L. The peak 

concentration of sodium in a semipublic well used by a church was 347 mg/L, 17 times the Drinking 

Water Advisory for healthy levels of sodium in water.40

Surface water/ecological impacts: EIP (2010) noted elevated levels of metals (particularly selenium, 

arsenic, and boron)41 first detected in water samples from the East Ash Impoundment System and the 

 

35 However, a man-made induced flow direction is invoked by Critique of EPRI CCW Risk Evaluation, Norris, 

Charles, H. & Hutson, Mark A., Geo-Hydro, Inc., Nov. 5, 2010, EPA-HQ-RCRA-2009-0640-6313, virtual page 54.

36 Amos Butler Audubon Central Indiana/Important Bird Areas.

http://www.amosbutleraudubon.org/Conservation/important-bird-areas

37 Arsenic: Between 17-71 μg/L; boron: 1.2-19 mg/L; iron 3.1-45 mg/L, and manganese: 1.2-5.2 mg/L. See also 

monitoring well data, Gibson Generating Station, in EarthJustice et al., Comments on the U.S. EPA’s Coal 

Combustion Waste Damage Case Assessment (July 2007): EPA-HQ-RCRA-2006-0796-0446, 

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0464.

38 According to EIP (2010) and EarthJustice’s comment to the docket: EPA-HQ-RCRA-2009-0640-6315.

39 Reaching concentrations of 5.7 mg/L for boron, almost twice the Child Health Advisory; 6.95 mg/L for iron, 23 

times the SMCL; and 1.73 mg/L for manganese, 34 times the SMCL.

40 According to the Citizens Coal Council and the Wabash Riverkeeper comment to the August 2013 NODA (EPAHQ-RCRA-2012-0028-0099), the contaminated private residential wells are about 0.5 miles to the north of the site, 

1-2 miles east of Gibson on State Rd. 64. This gives evidence that, at least locally, groundwater flow is in a 

northerly direction, possibly due to pressure “mounding” caused by the elevation of the ash ponds or flow pattern 

distortions related to other significant water withdrawals. A similar view is expressed in EarthJustice comment to the 

proposed CCR rule docket: EPA-HQ-RCRA-2009-0640-6313, virtual page 54: Critique of EPRI CCW Risk 

Evaluation, ibid.

41 Monitoring at the cooling lake also shows signs of contamination from CCR due to elevated levels of arsenic (23 

μg/L -57 μg/L ), boron (6.1 mg/L- 8.4 mg/L), and selenium (6.8 μg/L -18 μg/L). The levels of selenium exceeded 

EPA’s recommended selenium Criterion Continued Concentration in water - below 5 ppb - to protect aquatic life. 

The standard is not enforceable at power plants, however, since it applies to lakes and streams, not to discharge (See 

Coefield, 2009).
I. CCR Proven Damage Cases December 2014

13

cooling lake in 2003. The cooling lake had formerly been used by the public for fishing, but it was closed 

to the public due to concerns about the high levels of selenium. 

From 2003-2008, the cooling lake also discharged into the Cane Ridge Wildlife Management Area, a 

463-acre section of the Patoka River National Wildlife Refuge, contaminating the water, soil and biota 

with selenium levels that posed a high hazard to wildlife.

42, 43 The U.S. Fish and Wildlife Service 

(USFWS) reported that least tern eggs gathered at the site in 1996 and 2004 contained 3.53-5.48 mg/kg 

selenium and rising selenium levels over time, and hatchling mortality was high. Aquatic invertebrates 

sampled in Cane Ridge had whole body selenium levels of 8-50 mg/kg, while fish whole body selenium

levels in the wildlife area were 9-30 mg/kg.

44, 45 By 1997, fish populations were severely reduced and at 

least eight selenium-sensitive species had disappeared from the reservoir.

46 Fishery biologists with the 

Indiana DNR attributed this loss to increased water temperature associated with heated water discharges 

from Gibson Generating Station. However, the thermal tolerance limit of these species (e.g., 380C for

largemouth bass and crappie, 420C for bluegill) was not attained in ambient areas of the reservoir and no 

other potential causes were examined. Metals and other pollutants in coal ash effluent are known to 

reduce lethal temperatures for fish and also modify their behavior in a way that would make them less 

 

42 Environmental Health News (2009) and USFWS (2012). Selenium concentrations in water coming into the tern 

unit on Cane Ridge from Gibson Lake ranged from 11 to 14 ppb (recommended water quality concentration to 

protect fish and wildlife is less than 2 ppb). 

43 Gibson Lake/Cane Ridge IBA provides critical wetland habitat for migrating and wintering waterfowl, shorebirds, 

and gulls. The introduction of warm water discharge created from coal-fired power generation allows the lake to 

stay open in the winter, offering habitat for thousands of geese and ducks when other local wetlands are frozen. 

Indiana Audubon/Cane Ridge/Gibson Lake Birding Guide:

http://www.indianaaudubon.org/Birds/BirdingSites/CaneRidgeGibsonLake/tabid/161/Default.aspx

44 Selenium was measured at 11-14 μg/L in samples of this discharge collected in the fall of 2007: SFWS, Briefing 

Statement: Duke Energy's Gibson Selenium Contamination - Ramifications for Cane Ridge and Interior Least Terns

(May 28, 2008). Also, Lemly (2010).

45 According to Lemly (1993), the safe dietary level of selenium for wildlife is 3.0 mg/kg.

46 Largemouth bass, bluegill, pumpkinseed, warmouth, longear sunfish, white crappie, black crappie, and white bass.
I. CCR Proven Damage Cases December 2014

14

likely to avoid lethal temperature zones in a heated reservoir. Therefore, it is reasonable to conclude that 

coal ash pollution, in combination with elevated water temperature, eliminated the fish.

47

In 2007, after tests showed elevated selenium levels in fish, Duke Energy banned fishing in Gibson 

Lake.

48 The USFWS also stopped receiving water from Gibson cooling pond after having determined that 

eating the selenium–contaminated fish might be harmful to egg development in birds, and it took steps to 

discourage endangered least terns and other migratory birds from nesting there. In 2008, the USFWS took 

further action to protect wildlife by draining the Crane Ridge ponds, removing the fish and, in addition, 

plowing the pond bottoms to redistribute and bury the selenium in the soil.49

Evaluation against Proven Damage Criteria50

 

47 Lemly (2010) monetized the value of damage at $166.4 million

48 Duke Energy (2007). The duration of closing was pending the results of an environmental study of the lake's 

ecology and water quality, including selenium levels that have been detected in the lake's fish. This decision was 

made, among others, in consultation with the IDNR. Preliminary data indicated that selenium levels in Gibson Lake 

fish were below the EPA's recommended guidelines for recreational fishers, but above the levels recommended for 

people who rely on fish for subsistence, or a primary part of their regular diet. According to Stripers247.com (2007), 

Duke’s representative indicated that Duke Energy has issued a fish consumption advisory. According to a May 1, 

2013 Indiana DNR-Division of Fish and Wildlife Bulletin, ‘Removes Gibson Lake from the locations where channel 

catfish can be taken without regard to bag limit. Gibson Lake in Gibson County was closed to public fishing by 

Duke Energy in 2007 based on selenium levels in the fish, and it doesn’t appear it will reopen to public fishing.’

(Indiana DNR-Division of Fish and Wildlife, May 1, 2013. New rule changes that started in 2012 now in effect:

http://www.in.gov/dnr/fishwild/files/fw-Rule_Changes_May_2013.pdf.

49 US Fish and Wildlife Service, National Wildlife Refuge System/Selenium Threat Averted: 

http://www.fws.gov/refuges/mediatipsheet/June_2009/03.html

50 ICF (2010).

51 Fish populations were severely reduced and at least eight selenium-sensitive species had disappeared from the 

reservoir; and elevated hatching mortality occurred of endangered Least Tern.

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels 

(MCLs) or other health-based standards 

measured in groundwater at sufficient 

distance from the waste management 

unit to indicate that hazardous 

constituents have migrated to the extent 

that they could cause human health 

concerns

 Onsite groundwater data exceeded the primary EPA MCLs for 

arsenic.

 Onsite groundwater data exceeded secondary MCLs for iron 

and manganese, and was above the EPA Child Health 

Advisory for boron. 

 Offsite groundwater in residential wells had boron above the 

EPA Child Health Advisory, as well as manganese above its 

secondary MCL.

Criterion 2: Where a scientific study 

provides documented evidence of 

another type of damage to human health 

or the environment (e.g., ecological 

damage)

 Elevated levels of selenium in surface water samples from the 

cooling lake led to closure of the lake to the public. 

 A USFWS report indicated that cooling lake discharges into 

Cane Ridge Wildlife Area impacted the surface water quality 

and the biota because of selenium contamination.51

Criterion 3: Where there has been an 

administrative ruling or court decision 

with an explicit finding of specific 

 Duke Energy voluntarily agreed to supply bottled drinking 

water to homes with affected wells. Indiana Department of 

Environmental Management (IDEM) is satisfied with the 

voluntary action taken by Duke Energy and has not taken any 
I. CCR Proven Damage Cases December 2014

15

Resolution: The unlined landfill cell was closed and replaced by a composite-liner landfill cell in 2002. 

In 2008, Duke Energy decided to switch from wet handling and disposal of fly ash to a dry handling 

process, to be completed in 2013.

52 As part of the conversion, IDEM approved, in March 2009, Duke 

Energy’s closure and post-closure plans for the East Ash Pond System; East Ash Pond #3 began closure 

in 2009. This closure plan is scheduled to be completed by 2020. 

“IDEM has not taken any enforcement action (against Duke Energy) because the facility came in 

voluntarily with a closure and remediation plan. IDEM approved the closure plan and the ground water 

remediation plan. The bottled water was an interim measure: affected residents (in East Mt. Carmel) are 

now hooked up to city water.” 53 The ash pond system’s groundwater monitoring system was completed in 

fall 2009.54

In response to the adverse ecological impacts to the Cane Ridge Wildlife Management Area adjacent to 

Gibson Station’s cooling pond, Duke Energy carried out voluntarily the following: (i) Co-funded the 

construction for two nesting islands in Cane Ridge, designed to facilitate the breeding of the interior least 

terns (2005). (ii) Voluntarily constructed (2009) an alternative water supply - from the Wabash River - for 

the wildlife area. (iii) Stocked fathead minnows into the Cane Ridge ponds (tern pool) to lure back 

migratory birds and provide a less contaminated source of food for the nesting least terns, and (iv) in 

cooperation with other entities,

55 secured a $1 million grant to purchase and create 193 acres of moist soil 

units and a 60-acre nesting pool for the endangered least interior tern.

56 The results of these efforts 

include a 30 percent reduction in selenium residues in forage fish, 38 percent in invertebrates, and 71

percent in sediments of the tern pool management unit in the USFWS 2010 samples.

57

Fugitive Dust: Residents of the 10 trailers in East Mt. Carmel are also blanketed regularly with coal ash 

dust blowing from the near full ash ponds in the summer.58 IDEM has not responded to EPA’s follow up 

inquiry as to whether the state has addressed this issue.

ICF (2010) Rationale: Proven Damage. <A USFWS report indicated that selenium from cooling lake 

discharge has impacted water quality and biota in the Cane Ridge Wildlife Area. The cooling lake has 

been closed to the public due to concerns with elevated selenium levels. Ground water exceedances of the 

primary EPA MCL for arsenic have been found onsite. Groundwater exceedances of the EPA Child 

 

52 Fly ash is to be disposed of “in a 377-acre landfill with a synthetic lining over an additional layer of clay and sand 

to capture any liquid waste that might seep out.” (Courierpress.com, 2010).

53 Daniela Klesmith, IDEM communication with Julie Gevrenov, EPA Region 5, August 2011. According to the 

IDEM comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0269, in fall 2009, Duke 

completed an 8-mile water supply line to the affected residents.

54 EPA-HQ-RCRA-2011-0392-0269.

55 The refuge, Ducks Unlimited, Duke Energy (Cinergy's Habitat Conservation Program), Natural Resource 

Conservation Service, Indiana DNR, and other partners.

56 US Fish and Wildlife Service/Patoka River National Wildlife Refuge: http://www.fws.gov/midwest/patokariver/; 

Ducks Unlimited/Cane Ridge Wildlife Area: http://www.ducks.org/indiana/indiana-projects/cane-ridge-wildlife-area; 

Audubon/Cane Ridge Wildlife Management Area and Gibson Lake:

http://netapp.audubon.org/iba/Reports/2147. 

57 US Fish and Wildlife Service Journal: Cane Ridge Selenium Concentrations Dropping. April 17, 2011. 

http://www.fws.gov/FWSJournal/regmap.cfm?arskey=29326. According to USFWS (2012), selenium 

concentrations have significantly declined and are nearing or below concern levels.

58 EarthJustice comment to the docket: EPA-HQ-RCRA-2009-0640-6315, and citizen complaints at the Louisville, 

Kentucky (September 28, 2010) and Knoxville, Tennessee (October 27, 2010) CCR proposed rule public hearings.

damage to human health or the 

environment

official action with regard to the contamination of drinking 

water wells.
I. CCR Proven Damage Cases December 2014

16

Health Advisory benchmark for boron have been found in offsite residential wells. Duke Energy is 

voluntarily supplying bottled drinking water to homes with affected wells, but it is not being driven by an 

official action by IDEM, an administrative ruling, or a court decision.>

Industry’s Response: Duke Energy and USWAG claim59 that (i) EIP Report’s allegations are 

insufficient to establish a proven damage case concerning human health concerns, because off-site 

impacts to groundwater only exceed certain health advisory levels. Moreover, municipal water service has 

been supplied to all residents that might be affected by any alleged off-site impacts to groundwater. (ii) 

EIP (2010) cites no specific scientific study that concludes that there has been any off-site actual 

ecological damage caused by CCR impacts from Gibson Station’s operations; and (iii) IDEM has not 

taken any enforcement action related to any alleged CCR impacts.60 Thus, there has been no 

administrative ruling or court decision with an explicit finding of specific damage to human health or the 

environment. 

Postscript: Fish populations in Gibson Lake were severely reduced by 1997. Selenium levels in fish 

were elevated and remained above a toxic threshold in 2010. Whereas no detailed biological effects 

studies of fish tissue pathology or reproductive failure have been conducted, Duke Energy has closed the 

lake to recreational fishing. This case is analogous to other cases where selenium toxicity associated with 

power plant effluents proved fatal to fish.61 

References

USFWS (2012): 50 Years after Silent Spring: Lessons Learned at Indiana’s Cane Ridge. US Fish and 

Wildlife Service News Release, September 21, 2012. Accessed Online December 2013.

http://www.fws.gov/midwest/news/584.html

Courierpress.com (2010): New coal ash rules could affect Gibson Generating Station, Courierpress.com, 

September 7, 2010. Accessed Online May 2014.

http://www.courierpress.com/news/2010/sep/07/new-coal-ash-rules-could-affect-gibson/?print=1

EIP (2010): Out of Control: Mounting Damages from Coal Ash Waste Sites, Thirty-one New Damage 

Cases of Contamination from Improperly Disposed Coal Combustion Waste, case #6. Environmental 

Integrity Project and Earthjustice. February 24, 2010. Accessed Online September 2013.

http://www.environmentalintegrity.org/news_reports/news_02_24_10.php

GEI (2010): Specific Assessment for CCW Impoundments at Duke Energy Indiana (DEI) Gibson 

Generating Station, Owensville, Indiana. GEI Consultants, September 2010. Accessed Online July 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/duke-gibson-final.pdf

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix B, Case #6. ICF, 10/2010.

 

59 Duke Energy comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0215, and USWAG Comment to 

the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0211.

60 According to IDEM (EPA-HQ-RCRA-2011-0392-0269), the Agency “has not taken any enforcement action as 

there were no specific rules being violated and since Duke was taking appropriate actions to protect the citizens.”

61 On the status of the Federal selenium-in-fish regulation, see comment to the proposed rule’s docket: EPA-HQRCRA-2009-0640-2930, Attachment.
I. CCR Proven Damage Cases December 2014

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Lemly (2010): A White Paper on Environmental Damage from Coal Combustion Waste: The Cost of 

Poisoned Fish and Wildlife, A. Dennis Lemly, EPA Docket comment EPA–HQ–RCRA–2009–0640-

6313, Appendix I, December 15, 2010; accessed Online July 2012.

http://prairierivers.org/wp-content/uploads/2012/03/Lemly-2010-Environmental-Damage-from-CCW.pdf

Coefield (2009): EPA Set to regulate wastewater from Coal-fired power plants: High Se levels in powerplant wastewater may pose a risk to people and wildlife. Sarah Coefield, Scientific American, December 

4, 2009; accessed Online July 2012.

http://www.gewater.com/images/abmet/EPA%20Set%20to%20Regulate%20Wastewater%20from%20Co

al-Fired%20Power%20Plants_%20Scientific%20American.pdf

Duke (2009): Response to EPA’s Request for Information, under Section 104(e) of CERCLA, 42 USC § 

9604(e). Accessed Online July 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/duke-gibson.pdf 

Environmental Health News (2009): Selenium from Power Plants Poses Ecologic Risks, Spurs EPA 

Review. December 4, 2009; accessed Online July 2012.

http://www.environmentalhealthnews.org/ehs/news/selenium-from-power-plants

EarthJustice et al., (2008): Comments on the U.S. EPA’s Coal Combustion Waste Damage Case 

Assessment (July 2007): EPA-HQ-RCRA-2006-0796-0464; accessed Online July 2012.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0446

Duke Energy (2007): Gibson Lake Will Not Reopen for Fishing April 1. Duke Energy News website, 

March 27, 2007. Accessed Online September 2013.

http://www.duke-energy.com/news/releases/2007032701.asp

Stripers247.com (2007): Indiana Gibson Lake Closed to Anglers. Mark Crowley, March 27, 2007. 

Accessed Online September 2013.

http://www.stripers247.com/phpBB2/showthread.php?t=7958

Lemly (1993): Guidelines for Evaluating Selenium Data from Aquatic Monitoring and Assessment 

Studies, Environmental Monitoring and Assessment (28): 83-100; accessed Online July 2012.

http://www.researchgate.net/publication/258502377_Guidelines_for_evaluating_selenium_data_from_aq

uatic_monitoring_and_assessment_studies.

PR04. Northern Indiana Public Service Corp. (NIPSCO) Yard 520 Landfill Site (Brown's 

Landfill), Township of Pines, Porter County, Indiana

Type: Landfill and Structural Fill.

Brief Description: NIPSCO's (currently NiSource) Bailly and Michigan City power plants have 

deposited about one million tons of fly ash in the Town of Pines since 1966.62 Fly ash was buried in the 

 

62 The Pines Groundwater Site is located about four miles west of Michigan City and about one mile south of Lake 

Michigan in Porter County, Indiana (for the Site’s investigation area, see Figures 2 and 3 in AECOM, 2012). Yard 

520 consists of two areas: the northern portion (commissioned in 1966) which was permitted for Type II wastes, and 

is referred to as the Type II (North) Area; and the southern portion (commissioned in 1983) which was permitted for 

Type III wastes, and is referred to as the Type III (South) Area. The landfill was used for ash disposal through 2001. 

Yard 520 is located at the terminus of County Road 520 (from which it received its name), confined by US-20 to the 
I. CCR Proven Damage Cases December 2014

18

landfill63 and used as construction fill in the town.64 The landfill is only partially lined by a clay liner.65

The northwestern edge of the 1,460 acre size site borders the Indiana Dunes National Lakeshore 

(IDNL).66

CCR disposal has been a local source of ground- and surface-water contamination in the Town of Pines. 

A single sample of surface water collected in 1984 from Brown Ditch downstream from the Yard 520 

landfill contained concentrations of boron (3,300 μg/L) and ammonia (2.2 mg/L as N) that were large in 

comparison to background samples (Hardy, 1984).67

The ash is pervasive on site, visible in roads and driveways. Resident complaints lead to discovery of 

contaminated groundwater, a 2001 Preliminary Assessment and Site Investigation, and ultimately 

recommendation by the Indiana Department of Environmental Management (IDEM) for addition of the 

site to the EPA NPL as a Superfund Alternative Site.

68 Site investigations implicated the Pines Yard 520 

Landfill site as the likely source of contamination of residential water wells by heavy metals (manganese, 

boron, molybdenum, arsenic, lead) and ionizing radiation from fly ash at concentrations above humanhealth risk-based comparison levels.69 Elevated levels of contaminants not associated with coal ash, such 

as volatile organic compounds (VOCs) and MTBE, indicate additional sources of contamination.70

 

north, the railroad’s right of way to the south, Birch street to the west, and the southern projection of Liberty street 

to the east. EPRI (2010) suggests there is a discrepancy in the record in that EPA (2007) states that CCR disposal 

began in 1983 while the Remedial Investigation (RI) report for the site indicates that CCR disposal began in the 

1960s. EPRI (2010) suggests it is possible that the Damage Case Assessment refers to the South Area, which began 

receiving CCRs in the 1980s.

63 According to ENSR Corporation (2005, Appendix D), the 45-acre Yard 520 fill consists principally of originally 

slurried fly ash material with an estimated 5% of the total fill material consisting of construction/demolition debris 

(concrete, bricks, lumber, steel, and site clearing overburden, trees and brush). Steel waste was also received and 

hauled offsite to a scrap metal recycler. Based on the borings conducted during the Remedial Investigation, the 

thickness of fill material at the North Yard 520 Landfill Area ranges from 30.5 to 36.5 feet (AECON, 2010).

64 CCRs (presumably, mostly bottom ash and/or boiler slag) were used for road sub-base to fill in low-lying areas 

beneath roadways and utility trenches and by individual property owners for fill and for driveway surfacing. The 

application of CCRs started in approximately 1972 and was discontinued before 1980. For a comprehensive list of 

application sites in Town, see ENSR Corporation (2005, Appendix F); for areas of suspected CCR distribution, see 

Figures 4 and 25 in AECOM (2012). 

65 According to EPRI (2010), there is a clay liner beneath the southern portion of the landfill. No liner is present 

beneath the northern portion. According to AECON (2010), compacted clay walls were installed on the eastern, 

southern, and western sides of the Landfill’s South Area. The design hydraulic conductivity for these three sides was 

less than 1x10-6cm/sec, and the design thickness - at least 3 feet.

66 ENSR Corporation (2005, Appendix G), virtual pages 51-52. The boundaries of the Indiana Dunes National

Lakeshore (established 1973) are irregular and discontinuous because the parklands are interspersed with industrial 

areas and residential communities.

67 Cited from Buszka et al., (2007).

68 A Superfund alternative (SA) site is not listed on the NPL although it qualifies for such listing. The SA approach 

uses the same investigation and cleanup process and standards that are used for sites listed on the NPL, while it can 

potentially save the time and resources associated with listing a site on the NPL. As long as a PRP enters into an SA 

approach agreement with EPA, there is no need for EPA to list the site on the NPL. 

69 AECOM (2010). The highest levels of boron (42.4 mg/L), molybdenum (>0.18 mg/L), and other contaminants 

such as arsenic (1.10 mg/L) were found in monitoring wells surrounding the Yard 520 Landfill and in several private 

wells to the north of the landfill within its contaminant plume where these contaminants exceeded health based 

standards in several instances by many times.

70 According to KellerLynn (2010), prior to the landfill, groundwater flow was southerly and away from the Town 

of Pines’ domestic water wells (private supplies), but the topographically elevated landfill, in conjunction with a 

hydraulic barrier to flow constructed in association with a newer adjacent landfill on the south portion of Yard 520 

(South Cell), caused a reversal of groundwater flow (see ENSR, 2005, Appendix C, virtual pages 27-30). This 
I. CCR Proven Damage Cases December 2014

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The depth to bedrock in the vicinity of the Pine Site ranges between over 120 feet below land surface and 

up to 250 feet.71 Beneath the Area of Investigation, the bedrock dips mildly to the north. It consists of the 

Antrim Shale, a brownish- black, non-calcareous marine shale of Devonian age.

The unconsolidated materials above the bedrock consist of 100 feet or more of glacially-derived materials 

such as tills, glacio-fluvial deposits, and lacustrine deposits associated with Glacial Lake Chicago. These 

Pleistocene deposits are overlain by Holocene (post-glacial) deposits associated with the Lake Michigan 

shoreline. These Holocene deposits include dune-beach complexes alternating with low-lying marsh and 

wetland areas.72 In the vicinity of the Site, there are three dune-beach complexes which represent the 

current and previous locations of the Lake Michigan shoreline: the Lakeshore/Tolleston Dune-Beach 

Complex forming the current shore of Lake Michigan, the Calumet Dune-Beach Complex on which the 

Town of Pines was developed, and the Glenwood Dune-Beach Complex, which is located to the south of 

the Town of Pines. The geology of the dune-beach complexes consists of wind-blown sands and beach 

sands with small lenses of silts and clays or peat representing small, intra-dunal wetlands.73

Between the higher-elevation dune-beach complexes are low-lying swamps or marshes. To the north of 

the Town of Pines, the Great Marsh, located within the IDNL, is one of these lowlands. Within the Town 

of Pines another low-lying marsh area is drained by Brown Ditch. The geology of these marsh areas 

consists of peat and muck at the surface which overlie sands of the dune-beach complexes. 

Beneath these Holocene deposits are lacustrine silts and clays deposited by Glacial Lake Chicago and 

glacial tills. The thickness of the dune complexes overlying the lower permeability silts, clays and tills 

 

change in flow direction negatively impacted domestic wells. Whereas The RI Report leaves open the question of 

whether smaller amounts of CCR used in road sub-base could have been the sole culprit contaminating private well 

water, in their comment to the August 2013 NODA docket (EPA-HQ-RCRA-2012-0028-0092), Citizens Coal 

Council and Labadie Environmental Organization claim that in a number of locations in the eastern portion of Pines 

and other locations beyond the contaminant plumes of the Yard 520 coal ash landfill (compare Figures 2-12 and 3-

8(b) of the Remedial Investigation, AECOM, 2010), it was unregulated CCR fills that contaminated shallow 

groundwater with levels of boron and other CCR constituents clearly exceeding background concentrations. Specific 

examples cited are wells MW-106, MW-108, MW-111, and MW-115. In MW-111, located in a wetland about 3,500 

feet east of Yard 520 landfill, five of eight samples exceeded the Child One- and Ten-day Health Advisories for 

boron of 3.0 mg/L. Arsenic measured at 0.0114 mg/L, exceeding the MCL in one sample and equaling it in a 

duplicate sample. Sulfate, at 554 mg/L, exceeded the health based Drinking Water Advisory of 500 mg/L in one 

sample, and at 409 mg/L, exceeded the Secondary Drinking Water Standard of 250 mg/L in another sample. 

According to Figure 16 in AECOM (2012), MW-111 comprises the only well removed from the Yard 520 landfill 

where “cumulative risk screening results for the drinking water pathway is above USEPA target risk level of 10-4

(for arsenic).” The well log for MW-111 indicates the top five feet of ground traversed by the well are “suspected 

CCB.” According to Figure 27 in AECOM (2012), MW-111 “is in area of suspected CCBs extending substantially 

beyond roadways.” AECOM (2010, page 6-9), essentially concurs with the presumable source of exceedances in 

MW-111.

MW-106 is located even further away from Yard 520 landfill (about a mile to the ENE). According to data 

compiled in EPA-HQ-RCRA-2012-0028-0092, MW-106 had average boron in RI samples of 1.40 mg/L, well over 

EPA’s Removal Action Level in Superfund of 0.900 mg/L and human health risk-based comparison level of 0.730 

mg/L in the Pines cleanup. Average molybdenum was 0.129 mg/L, far exceeding the human health risk-based 

comparison level and more than three times the federal Lifetime Health Advisory for molybdenum of 0.040 mg/L. 

Average selenium at MW-106 was 0.060, exceeding the MCL (note, though, that AECOM (2010, page 4-35) 

concluded that “the data collected during the RI indicate that selenium in groundwater is not related to CCBs in the 

Area of Investigation”). The well’s drill log documents a 10.8 inch layer of “suspected CCBs,” and there are 

anecdotal reports of as much as 11-12 feet of CCR below Columbia Avenue near MW-106 (See also Figure 27 in 

AECOM, 2012).

71 The following section about the Site’s Quaternary/Holocene geology is slightly modified from AECOM (2010).

72 Shedlock, et al., 1994.

73 Shedlock, et al., ibid.
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ranges from more than 100 feet beneath the dunes of the current Lake Michigan, to approximately 2 to 25 

feet in the area of Brown Ditch. To the south, there are no dune sands present, and the silts/clays and/or 

tills are present at the ground surface.74 

The Calumet Aquifer System (also: the Surficial Aquifer; see Buszka et al., 2007) consists of 5 – 35 feet 

thick fine- to medium-grained sand with dispersed lenses of beach gravel.75 While mostly unconfined 

aquifer, beds of intermittent silt and clay, and deposits of peat and muck confine the aquifer in small areas 

across the region. The underlying, confined Lacustrine Plain Aquifer System76 consists of up to 80 feet of 

fine- to medium-grained glacio-lacustrine and coastal sands capped by either lacustrine clays or till. The 

thickness of individual aquifer units averages 24 feet. The Quaternary aquifers system is underlain by the 

Devonian Antrim marine Shale (bedrock) aquifer system.77 The Yard 520 landfill is located on the contact 

between the Calumet Aquifer System to the North and the underlying Lacustrine Plain Aquifer System to 

the south.78

Geohydrologic studies conducted in the eastern part of the IDNL79 and as part of the Remedial 

Investigation in the Town of Pines80 have demonstrated that in some instances groundwater from the 

surficial aquifer can be characterized by and distinguished from groundwater from the underlying 

confined aquifers by its generally lower specific conductivity/TDS values and slightly acidic pH values, 

younger water age (i.e., higher values of Tritium Units) as well as by its higher oxidation potential and 

total organic carbon. In contrast, the water quality in the basal aquifer (the first aquifer overlying the 

bedrock aquifer) is affected by upward leakage from the Antrim Shale, leading to elevated concentrations 

of constituents such as sodium, chloride, fluoride, and boron. However, this upward leakage frequently 

also affects and modifies the composition of groundwater in the surficial aquifer. For instance, some 

boron levels that exceed the RAL values constitute the natural fingerprint of the basal aquifer and are not 

always attributable to leaching from CCRs.81

Resolution:82 In September 1995, following an Administrative Order between Brown and IDEM, a clay 

barrier, starting from 3 to 4 feet below the top of the existing clay liner for the southern landfill area, was 

 

74 Shedlock, et al., ibid.

75 The geohydrologic description is after the Indiana Department of Natural Resources (1994). The Calumet Aquifer 

has not been developed significantly because of its proximity to Lake Michigan, an abundant surface-water source. 

Expected high-capacity yield ranges from 20 to 100 gallons per minute (gpm), but up to 150 gpm are obtained in 

some areas. The aquifer is highly susceptible to surface contamination because there is no clay-rich cap across most 

of the aquifer and there is a lack or scarcity of clay separator beds.

76 The Lacustrine Plain Aquifer is analogous to the Subtill Aquifer and the Basal Sand Aquifer of previous studies: 

see Table 1 in Shedlock et al., (1994) and Table 1 in Buszka et al., (2007). Expected high capacity yields range from 

50 to 150 gpm, but yields up to 500 gpm are reported in some areas. The System’s susceptibility to contamination 

ranges from low to high, depending on the thickness of the surficial lacustrine clays and till.

77 For the geohydrology of Porter and LaPorte counties, see the above cited studies and Rosenshein and Hunn 

(1968). The bedrock aquifer is characterized by very low yield (less than 10 gpm), and it forms a confining unit. 

78 According to the Remedial Investigation (AECOM, 2010, Figures, virtual page 26), the excavated bottom of the 

southern landfill coincides with the top of the clay confining unit of the Lacustrine Plain Aquifer. 

79 Shedlock et al., (1994); Buzska et al., (2007).

80 AECOM (2010).

81 The boron concentrations in the basal sand aquifer range from 0.656 to 1.8 mg/L, and the median boron 

composition is 0.730 mg/L. However, these background levels in the surficial aquifer are generally below risk-based 

comparison levels, and so elevated levels of boron in shallow groundwater cannot be completely attributed to 

background or as being contributed from the deeper groundwater.

82 This section is based on documents provided in USEPA Region 5 (2013) website (Pines Groundwater Plume Site: 

http://www.epa.gov/region5/cleanup/pines/)
I. CCR Proven Damage Cases December 2014

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constructed between the southern and northern sides of the landfill.83 Closure of the North Area Landfill 

occurred in 1986/87, and the landfill closed permanently in 2001.84 Uncapped fly ash materials were 

identified beyond the historical waste boundary for the Type II (North) Area in 2001. The fly ash 

materials were located along the east, north and west boundaries of the Type II (North) Area. To address 

these materials, a Supplemental Closure Plan was submitted to IDEM in October 2003, and the plan was 

approved by IDEM in August 2005. This Supplemental Closure was completed in 2006-2007.85 EPA and 

the Primary Responsible Parties (PRPs) signed an Administrative Order of Consent (AOC I) effective 

January 2003 to cover costs of connecting the affected areas to Michigan City’s water system, and 

between 2003 and 2005, approximately 340 Town-of- Pines homes located along US Highway 12 were 

provided with Michigan City municipal water, replacing private drinking water wells. In April 2004, EPA 

and IDEM negotiated an Administrative Order of Consent with the PRPs (AOC II) for continued work at 

the site.86 The 2004 EPA sampling and analytical results led also to an emergency provision of bottled 

 

83 The purpose of the barrier wall was to provide a low permeable separator between the northern landfill area and 

southern landfill area. The barrier was to be 10 feet thick and 17 feet high, directly connected to the existing liner for 

the southern area, extend to the ground surface, and tie in at the surface to a 2-feet clay cover for the northern area. 

The barrier was designed to have permeability no greater than 10-6cm/sec (ENSR Corporation, 2005, Appendix D, 

virtual pages 35-36). According to AECOM (2010), the hydraulic conductivity of the clay barrier wall was

measured at 7 x 10-8cm/sec or 2 x 10-4feet/day. This represents more than a five-order of magnitude decrease over 

the hydraulic conductivity of the surficial aquifer (geometric mean of 15 feet/day).

84 NiSource comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0225). However, AECOM (2010) 

cites a different closing date: “The Type III (South) Area was closed in 2004 and the closure was approved by 

IDEM in August 2005.” 

85 AECOM (2010), pages 1-2 to 1-3.

86 USEPA Region 5 (2014). Specifically, in January 2003, NIPSCO, Brown, Inc., Ddalt Corp., and Bulk Transport, 

the PRPs for the Site, signed an AOC with EPA to provide municipal water to approximately 130 homes in and near 

the Town of Pines. Further testing by Pines’ residents and EPA revealed more contaminated wells. On April 5, 

2004, the PRPs signed an amendment to the original order to provide an additional 140 homes with municipal water. 

About 70 additional homes would receive bottled water pending the results of an investigation into the nature and 

extent of the contamination and the potential long-term risks to local residents and the environment. The 

investigation and related work was outlined in a second AOC between EPA and the PRPs signed on April 5, 

2004. The investigation was conducted from 2004 to 2007. Twenty-two new monitoring wells were installed along 

with 12 piezometers. Over 150 groundwater samples, 92 surface water samples, 84 soil samples, and 27 sediment 

samples were collected. Samples were analyzed predominantly for CCR-related metals, but some were also 

collected for radionuclides, polynuclear aromatic hydrocarbons (PAHs), and dioxins. A Remedial Investigation 

Report was generated by the PRPs and approved, with some modification, by EPA on May 28, 2010.

Groundwater flow reversals were caused by the construction above grade of the Yard 520 fly ash landfill. 

Domestic water supply wells that historically were hydraulically up gradient of the North Landfill cell were shown 

to be down gradient after water level monitoring established the existence of a groundwater high under the fly ash 

mound and a radial flow pattern away from the site. Due to groundwater flow reversals in the Town of Pines area, 

Indiana Dunes National Lakeshore and the Grand Marsh are now down gradient of the Yard 520 fly ash landfill. In 

the absence of domestic well capture, however, there is now the potential for uninterrupted plume migration of 

boron-rich groundwater to the Great Marsh, the largest interdunal wetland on the Lake Michigan shoreline (Penoyer, 

2009). Cowles Bog, with its unique ecology, comprises part of the Great Marsh. According to KellerLynn (2010), 

the general stratigraphy of the Great Marsh is, in descending order: peat, sand, and calcareous sand/clayey marl. The 

Great Marsh is situated between the beach-dune complex of the Calumet shoreline and the modern Tolleston 

shoreline. The Great Marsh began to form when lake level fell about 3,500 years ago (Thompson, 1987, and 

Thompson, 1994). Starting in the late 19th Century, ditching for drainage purposes and the construction of roads, 

levees, factories, and houses segmented the marsh. Drainage and segmentation have resulted in changes in 

hydrology and loss of habitat. These changes also have made the marsh drier, resulting in an altered plant 

community and the invasion of nonnative species. Restoring the Great Marsh, by restoring the hydrologic regime to 

its natural condition has been a major goal of the National Park Service. Restoration includes filling in ditches, 

plugging culverts, and constructing spillways and levees so surface water can flow without restriction.
I. CCR Proven Damage Cases December 2014

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drinking water to Beverly Shores residents whose wells produced water with boron or molybdenum 

concentrations higher than a RAL.87, 88

In 2006/2007, both portions of the landfill were capped with two feet of clay covered by topsoil, in 

accordance with IDEM requirements. A storm water management impoundment was also closed. 

Groundwater monitoring has been conducted at Yard 520 since at least the early 1980s. Some of the 

existing Yard 520 monitoring locations were used to collect data as part of the remedial field 

investigation. Groundwater monitoring is ongoing to evaluate concentration trends.89

Human health and ecological risk assessments have been completed. The risk assessments identified 

contaminants above acceptable levels for potential future exposures and exceeding drinking water 

standards (MCLs) making a feasibility study necessary. The draft feasibility study under review by EPA 

and IDEM includes alternatives to remediate the contaminants and proposes additional sampling to 

 

87 However, the study conducted by Buszka et al., (2007) to identify the source(s) of the elevated boron in Beverly 

Shores’ residential wells, about one mile WNW of the town of Pines (ibid, Figure 2) established that with one 

possible exception, the source of boron was either natural (the confined aquifer) and/or detergents associated with 

septic tanks.

88 According to Buszka et al., (2007), in March 2004, sampling and analysis of ground water by the USEPA identified boron concentrations greater than 900 μg/L in water from three domestic wells and from one well at a National 

Park Service facility near Beverly Shores. A separate 2004 USEPA sampling of water from a well at a local 

elementary school about 0.75 mi west of the Town of Pines identified boron at a concentration of 424 μg/L and 

molybdenum at a concentration of 10.8 μg/L. Concentrations established as removal action levels (RALs) by the 

USEPA are 900 μg/L for boron and 10 μg/L for molybdenum (USEPA, 1998). However, a lack of information to 

define the screened depth of many wells that produced water with concentrations exceeding a RAL precluded a 

determination of whether the groundwater source for those wells was the surficial aquifer or one or more of the 

confined aquifers.

Buszka et al., (2007) characterized chemically and isotopically (δ11B, δ 87Sr, and tritium) four subsets of 

well water collected from 15 different wells between the Yard 520 CCR landfill in the east and areas up to about 1.5 

miles to the west, in the Beverly Shores area. Those representative sources are (i) CCR-affected water from the 

surficial aquifer (four wells on the periphery of Yard 520 Landfill); (ii) domestic-wastewater-affected water from the 

surficial aquifer (three wells); (iii) water from parts of a surficial aquifer distant from human-affected boron sources 

(surficial aquifer) (four wells); and (iv) water from a deep, confined aquifer (the basal sand aquifer) representing 

natural boron sources (four wells). In addition, they sampled and analyzed water from another 11 wells, some of 

which had boron exceeding the RAL, where the source aquifer was not known. The purpose of their study was to 

distinguish between boron-containing water which registers CCR leachate impact vs. natural and other 

anthropogenic source terms. In water samples from two domestic wells where the groundwater source was 

unknown, boron concentrations were less than the RAL; boron isotope ratios and tritium concentrations were similar 

to domestic-wastewater-affected surface aquifer water. The boron concentrations in the basal sand aquifer was found 

to range from 0.656 to 1.8 mg/L, whereas groundwater impacted by septic discharges contained boron 

concentrations of up to about 0.390 mg/L. Using the calibrated boron isotope values combined with other 

geochemical attributes they concluded that the boron isotope ratio for a sample from one domestic well (Well 13U, 

between S. Belleview and W. Broadway in Beverly Shores, about one mile WNW from the Yard 520 Landfill) was 

similar to those of CCR-affected surface aquifer water and domestic sewage (detergent-controlled) compositions; 

the boron concentration of that sample, however, was less than the RAL. Conversely, groundwater with boron 

concentrations greater than the USEPA RAL of 900 μg/L for drinking water from wells where the groundwater 

source was unknown had boron isotope ratios and tritium concentrations that indicate a source of boron that is 

natural (i.e., the age of the analyzed water preceded the outset of CCR placement at the Yard 520 landfill and the 

Town of Pines).

89 AECOM (2010), EPRI (2010).
I. CCR Proven Damage Cases December 2014

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reduce the level of uncertainty in the risk assessments.90 EPA intends for a final cleanup decision to be 

made by late 2015, after all of the public comments are considered.91

Previous Basis for Consideration: Scientific: Evidence for boron, molybdenum, arsenic, and lead 

exceeding health-based standards in water wells away from the Pines Yard 520 Landfill site; and 

Administrative: Orders of consent signed between EPA and IDEM with responsible parties for continued 

work at the site.92

Other Considerations:

 EPA order of consent requiring remediation, and correcting of contaminated offsite water supplies

 Boron, molybdenum, arsenic and lead were detected in offsite wells above unspecified health 

based standards

 A 2009 Gamma Ray count survey93 indicates exceedances of EPA’s soil cleanup radiation 

standards (5 pCi/g). However, an EPA Region 5 review of the survey concluded that the report has 

significant weaknesses in instrumentation, survey methodology and interpretation, and 

conclusions and recommendations. According to EPA Region 5, the possible interpretations of the 

results range from no detectable concentrations of radionuclides of interest above background 

levels to low concentrations of the radionuclides of interest slightly above the concentrations of 

those radionuclides at the background sites.94 To resolve this issue, a preliminary soil testing in 

about 45 yards in the spring of 2014 was done to confirm the amount of coal ash in yards and 

rights of way as well as to see if elevated radiation levels are present. A follow-up testing in 

August 2014 intended to take more precise soil samples at approximately nine different private 

properties, focusing on specific radioactive compounds as well as other “contaminants of concern” 

such as boron and arsenic.

ICF (2010) Rationale: Proven Damage. <Offsite groundwater exceeds MCLs for arsenic and selenium. 

Administrative Consent Orders were for site assessment and delineation of nature and extent but did not 

contain explicit findings of specific damages.>

References:

USEPA Region 5 (2014): Pines Ground Water Plume Site, Region 5 Cleanup Sites. Accessed Online 

September 2014.

http://www.epa.gov/region5/cleanup/pines/

AECOM (2012): Human Health Risk Assessment Pines Area of Investigation, AOC II Docket No. V-W-

’04-C-784. AECOM Environment, July 2012. Accessed Online September 2013.

http://www.epa.gov/region5/cleanup/pines/pdfs/pines-hhra-201207.pdf

Figures:

http://www.epa.gov/region5/cleanup/pines/pdfs/pines-hhra-figures-201207.pdf

 

90 According to USEPA Region 5 (2014), after the feasibility study is approved EPA will select its preferred 

alternative and present that preferred alternative to IDEM and the public for their review and comment. After EPA 

considers comments a Record of Decision (ROD) would be generated by EPA that outlines the steps needed to 

reduce risks to acceptable levels. EPA would then provide the PRPs with the opportunity to perform the remedy 

outlined in the ROD.

91 Pines Groundwater Plume Site: http://www.epa.gov/region5/cleanup/pines/index.htm, July 2014 site update.

92 USEPA Region 5 (2014).

93 PINES (2009).

94 Ohl (2012).
I. CCR Proven Damage Cases December 2014

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Ohl (2012): Response to Comments on Review of Pines Radiation Survey, Enclosure 1. Pines Site, Pines, 

Porter County, Indiana, Administrative Order on Consent Docket No. V-W-04-C-784. Letter to Paul 

Kysel, President, PINES Group, from Matthew J. Ohl, EPA Region 5 Remedial Project Manager, 

February 29, 2012. Accessed Online January 2013.

http://www.epa.gov/region5/cleanup/pines/pdfs/pines_rsra.pdf

AECOM (2010): Remedial Investigation Report, Pines Area of Investigation, AOC II Docket No. V-W-

’04-C-784, AECOM, March 5, 2010. Accessed Online June 2012.

http://www.epa.gov/region5/sites/pines/pdfs/pines_ri_201003_report.pdf

Figures:

http://www.epa.gov/region5/cleanup/pines/pdfs/pines_ri_201003_figures.pdf

EPRI (2010): Evaluation of Coal Combustion Product Damage Cases, Volume 2: Case Summaries. 

1020554, EPRI Final Report, September 2010. Accessed Online June 2012.

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%20

Product%20Damage%20Cases

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #19. ICF, 10/2010.

KellerLynn (2010): Indiana Dunes National Lakeshore, Indiana, Katie KellerLynn, Geologic Resources 

Division, National Park Service, US Department of the Interior, November 30, 2010. Accessed Online 

January 2013.

http://www.nature.nps.gov/geology/inventory/publications/reports/INDU_GRI_scoping_summary_2010-

1130.pdf

Penoyer (2009): Landfill Effects on Groundwater Flow Town of Pines Superfund Site and Indiana Dunes 

National Lakeshore, Pete Penoyer. Page 19, in Water Resources Division Summary of FY08 

Accomplishments. Natural Resource Program Center, Fort Collins, Colorado, National Park Service, U.S. 

Department of the Interior. Accessed Online September 2014.

FY2008 - Explore Nature - National Park Service

PINES (2009): Gamma Count Rate Survey in Pines, Indiana, Conducted October 10 – 15, 2009 PINES 

(People in Need of Environmental Safety), October 27, 2009. Accessed Online June 2012. 

http://www.pineswater.org/RadSurveyPINES.htm

Buszka et al., (2007): Evaluation of Ground-Water and Boron Sources by Use of Boron Stable-Isotope 

Ratios, Tritium, and Selected Water-Chemistry Constituents near Beverly Shores, Northwestern Indiana, 

2004. Paul M. Buszka, John Fitzpatrick, Lee R. Watson, and Robert T. Kay, U.S. Geological Survey, 

Scientific Investigations Report 2007–5166, prepared in cooperation with the U.S. Environmental 

Protection Agency, 2007. Accessed Online September 2013.

http://pubs.usgs.gov/sir/2007/5166/pdf/sir2007-5166_web.pdf

EPA (2007): Coal Combustion Waste Damage Case Assessments, Case #19, docket ID EPA-HQ-RCRA2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007. 

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

ENSR Corporation (2005): Site Management Strategy, Pines Area of Investigation, Volume II, 

Appendices, Document No. 01776-020-111, AOC II, Docket No. V-W-’04-C-784, January 2005. 

Accessed Online September 2013.

http://www.epa.gov/Region5/cleanup/pines/pdfs/pines_sms_200501_vol2_appendices.pdf
I. CCR Proven Damage Cases December 2014

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EPA (1998): Retransmittal of the latest Superfund Removal Action Levels. Office of Solid Waste and 

Emergency Response. November 10, 1998.

Indiana Department of Natural Resources (1994): Water Resources Availability in the Lake Michigan 

Region, Indiana, Beaty, J. E., Gosine, R., and Smith, M.A., edts., Water Resources Assessment 94-4 

(Summary). Accessed Online January 2013.

http://www.in.gov/dnr/water/files/lakemich_basinsums.pdf

Shedlock et al., (1994): Hydrogeology and hydrochemistry of dunes and wetlands along the southern 

shore of Lake Michigan, Indiana. Shedlock, R.J., Cohen, D.A., Imbrigiotta, T.E., and Thompson, T.A., 

U.S. Geological Survey Open-File Report 92-139, Indianapolis, Indiana, 1994. Accessed Online 

September 2013.

http://pubs.usgs.gov/of/1992/0139/report.pdf

Thompson (1994): History and Architecture of Wetland Development in the Indiana Dunes, Todd A. 

Thompson, Indiana Geological Survey/Indiana University, Bloomington, Indiana. Proceedings of the 

Indiana Academy of Science, 1994, Volume 103 (3-4) p. 167-176. Accessed Online September 2013.

http://journals.iupui.edu/index.php/ias/article/download/7363/7358

Thompson (1987): Sedimentology, internal architecture and depositional history of the Indiana Dunes 

Natinal Lakeshore and State Park. Thompson, T.A., Ph.D. Thesis, Indiana University, Bloomington, 129 

pp. (Unpubl.)

Hardy (1984): Chemical and biological quality of streams at the Indiana Dunes National Lakeshore, 

1978-80. Hardy, M.A., U.S. Geological Survey Water-Resources Investigations Report 83-4208, 1984.

Rosenshein and Hunn (1968): Geohydrology and Ground-Water Potential of Porter and LaPorte Counties, 

Indiana, Rosenshein, J.S. and Hunn, J.D., Division of Water Resources Bulletin 32, Geological Survey, 

US Department of the Interior, in Cooperation with Indiana Department of Conservation, , 1968. 

Accessed Online January 2013.

http://www.in.gov/dnr/water/files/529_all.pdf

PR05. Constellation Energy’s BBSS Sand and Gravel Quarries, Gambrills, Anne Arundel 

County, Maryland

Type: Sand and Gravel Pits.

Brief Description: Two unlined sand and gravel pits (Turner and Waugh Chapel, 115 acres and 78 

acres, respectively), operated under surface Mining permits, have been subjected to reclamation.95

 

95 According to an Earthjustice comment to the 2007 NODA docket (EPA-HQ-RCRA-2006-0796-0464), in the mid1990s, the sand and gravel mining operations were drawing to a close as the pits were dug deep enough to intersect 

the groundwater table. The original mining permit issued to BBSS required reclamation of the pits after operations 

ceased. According to Siegel (2011), this happened in the wake of the Anne Arundel County legislature’s passing bill 

60-94 (1994) that encourages the use of coal ash for beneficial use in sand and gravel pit reclamation. The facility’s 

‘liner’ consisted of compressed fly ash.
I. CCR Proven Damage Cases December 2014

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Between 1995 and 2007, the pits were filled with 4.6 million tons96 of fly ash and bottom ash from 

Constellation Energy’s Brandon Shores and Wagner power plants.97 Constellation Energy98 claims that 

the reclamation was practiced in compliance with Maryland’s pollution prevention requirements.99

Private drinking water wells are located about a quarter of a mile down-gradient from the Waugh Chapel 

Pit (WCT) and between about half a mile and a mile down-gradient from the Turner Pit (TP). The area is 

underlain by four major sand/gravel aquifer units of Cretaceous age that dip towards the southeast. They 

are separated by clay-silt aquitards with gradational boundaries. The potentiometric surfaces of these 

aquifers indicate southeastern flow directions.100 The minimal separation between the base of the ash and 

groundwater table at the Turner Pit was less than 2 feet.101

 

96 Siegel (2011). According to Versar (2007), since 1995, Constellation Energy Group has provided Reliable 

Contracting Co., Inc., the site’s operator, with approximately 200,000 to 400,000 tons per year of CCRs, primarily 

Class F fly ash

97 According to The Baltimore Sun: Constellation coal plants face an uncertain future, November 26, 2011, 

http://articles.baltimoresun.com/2011-11-26/business/bs-bz-hancock-constellation-coal-20111126_1_exelonmerger-constellation-and-exelon-coal-plants, and to Wikepedia’s Brandon Shores Generating Station: 

http://en.wikipedia.org/wiki/Brandon_Shores_Generating_Station, Brandon Shores and H.A. Wagner were built by 

Baltimore Gas and Electric (BGE) and transferred to Constellation, BGE’s parent, as a result of deregulation. 

Brandon Shores, in Pasadena, Anne Arundel County, consists of two Babcock and Wilcox coal-fired boilers and two 

General Electric steam turbines with a combined nominal generating capacity of 1370 MWe. Unit 1 went into 

operation in May 1984 and Unit 2 - in May 1991. In 2010, the Plant was equipped with scrubbers. The station shares 

a 483-acre site adjacent to the Patapsco River with the Herbert A. Wagner Generating Station, opened in 1956. The 

Wagner Plant uses coal/oil/gas as fuel and has 976 MW of generating capacity. Both generating stations consume 

approximately 4.8 million tons of coal annually. Coal for both stations is delivered by barge. On August 9, 2012, 

Exelon announced that it had reached an agreement, subject to regulatory approvals, for the sale of the Brandon 

Shores, Herbert A. Wagner and Charles P. Crane Generating Stations to Raven Power Holdings LLC, a newly 

formed portfolio company of Riverstone Holdings LLC, as condition for regulatory approval of its merger with 

Constellation Energy to alleviate concerns regarding potential market power in the regional wholesale electricity 

market. The sale was completed on November 30, 2012. 

98 Constellation Energy’s comment to the proposed CCR rule’s docket: 

http://www.uswag.org/pdf/2010/CCR%20Comments/Constellation11192010.pdf, Pp. 11-12 and Appendix A (pp. 

14-21).

99 Namely, four-feet separation of the ash from groundwater, installing a base drainage layer for a moisture break, 

compaction of the ash in lifts to a permeability of 10-5cm/sec, covering each completed ash cell with low 

permeability cap, continuous monitoring of the ash to confirm its non-hazardous composition, and regular 

groundwater and surface water monitoring.

According to Versar (2007), the site did not have a leachate collection system in place, but rather relied on 

the underlying geology to limit impacts to the regional ground water system. The underlying Magothy formation 

contains the uppermost water bearing sands and supplies potable ground water to local residents. The basal clay unit 

forms a confining layer between the Magothy and underlying Patapsco formation, which supplies potable water to 

the downgradient residential communities of Crofton.

100 According to Andreasen (2007), the Patapsco Formation, Arundel Clay, and Patuxent Formation (in descending 

order) form the Lower-Cretaceous Potomac Group. The Patuxent aquifer, deepest of the Coastal Plain aquifers, is 

confined at its base by consolidated rock of Triassic, Lower Paleozoic, and/or Precambrian age. The Arundel Clay, an 

effective confining bed, separates the Patuxent and Lower Patapsco aquifers. Clays within the Patapsco Formation 

divide it into an upper and lower aquifer. The Upper-cretaceous Magothy aquifer overlies the Upper Patapsco aquifer. 

Sediment of the Potomac Group was deposited in a fluvio-deltaic environment by meandering or braided river systems. 

This form of deposition resulted in a complex array of lenticular and inter-fingering layers of gravel, sand, silt, and 

clay. Aquifers formed by these sediments consist of multiple sand and gravel layers inter bedded with silt and clay. 

The Magothy aquifer consists of light gray to white sand, inter-bedded with layers of black and gray lignitic clay. 

Pyrite is a common accessory mineral. Massive beds of well-sorted, coarse-grained sands characterize the Magothy 

aquifer.

101 At the southeastern area of the TP, around well B-21: NRT (2010, Appendix C).
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Impact: In July 1998, Baltimore Gas and Electric102 found elevated sulfate levels beyond the edge of the 

Turner Pit. However, based upon the company’s projections, MDE issues a series of permits for expanded 

infilling at the TP and later, at the nearby WCP.103 Subsequently, elevated cadmium and arsenic, and 

exceedances of thallium were found in local groundwater. In May 2004, in an attempt to remove the 

contaminants from the groundwater, BGE installed a “Pump and Treat” groundwater recovery system in 

the TP. From 2004 until 2006, the groundwater remediation efforts resulted in decreasing sulfate 

concentrations in the areas close to the pits, but the sulfate concentrations were increasing at the more 

distant locations, in proximity to homeowner wells.

Groundwater samples first collected in October 2006 and in three subsequent sampling campaigns in 

2007 from residential drinking water wells near the site (along Summerfield Road)104 indicated 

contaminants at or above groundwater quality standards. Testing of private wells in 83 homes and 

businesses around the disposal site revealed MCL exceedances in 34 wells and SMCLs exceedances - in 

63 wells. Exceedances in one or more wells included arsenic, beryllium, cadmium, lead, thallium, nickel, 

aluminum, manganese, and sulfate.105 Residents were provided with piped water (October 2007) and a 

proposed remediation plan was prepared in May 2008106 and revised in September 2010.107

Constellation Energy (CE) claims that baseline sulfate (between about 200-300ppm) and acidic 

Groundwater (pH values as low as 2.2) probably have contributed metals leached from soils and 

household plumbing. A report prepared for MD DENR108 concedes that pyritic “black” soils present at 

the site contain significant amounts of iron and sulfate; when removed from their natural environment 

coupled with oxidation and exposure to strong acids, these soils will leach heavy metals including 

antimony and cadmium. However, the report found no indication that these black soils leach at significant 

concentrations when left in place or disturbed during mining operations.

CE claims that a 2007 fact sheet prepared by the County109 served as EPA’s basis for designating the site 

as a proven damage case in its June 2010 proposed rule. The 2007 fact sheet shows MCL exceedances in 

only 4 drinking water wells, and the extent to which background or the mining conditions contributed to 

these concentrations is scientifically unconfirmed. CE claims that EPA should consider the (minor) 

degree to which an MCL was exceeded, as well as the short duration of any potential exposure, both of 

which mitigated any potential for damage: except for a single 0.002ppm cadmium exceedance, the four 

 

102 Baltimore Gas and Electric (BGE) is the predecessor of Constellation Energy.

103 Elevated sulfate levels were detected at perimeter monitoring wells W7, W13, W20, W21, and W22. BGE 

conducted studies that predicted that even though sulfate concentrations were now found outside of the gravel pits, 

the concentrations would never exceed the permitted limit of 500 mg/L, and would only reach 245 mg/L after 32 

years, to about 2027. As a result, in October 1998, MDE approved expansion of the ash filling operations at the 

Turner pit. MDE also authorized BGE to initiate filling activities in the WCP, which BGE commenced in September 

2000. 

104 Anne Arundel (2007).

105 MDE (2007) and Phillips (2007): One well with arsenic at a range of 3-25ppb (up to x 2.5 the MCL), one well 

with beryllium at a range of 1-5ppb (up to x 1.25 the MCL), six wells with cadmium at a range of 4.4-16 ppb (up to 

x 3.2 the MCL), 20 wells with lead at a range of 5-160ppb (up to x 11.7 the MCL), six wells with thallium at a range 

of 1-6ppb (up to x 3 the MCL), 43 wells with aluminum at a range of 100-55,800 ppb, 14 wells with manganese at a 

range of 60-2,370ppb (up to x 47.4 of the SMCL), and five wells with sulfate at a range of 10-1,190ppm (up to x 4.7 

of the SMCL).

106 NRT (2008).

107 NRT (2010).

108 Versar (2007).

109 MDE, ibid.
I. CCR Proven Damage Cases December 2014

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wells met drinking water standards when re-sampled in 2007.110 An annual trend analysis submitted by 

CE to MDE incorporating monitoring well data collected through the first quarter of 2011, shows an 

overall decreasing temporal trend in the concentration of thallium and sulfate in MW7111 and MW13,112

just down-gradient from the recovery wells below the TP, and in wells MW21113 and MW22,114 within

about 100 feet down-gradient from the WCP. However, arsenic in MW7 (0.05 mg/L in 2003) remained in 

exceedance (0.06 mg/L) in the first quarter of 2011. 

A synthesis of 2009-2010 groundwater data analyses, based on the sets of groundwater monitoring wells 

CE installed in May2004 and August 2010, concludes that: (i) the direction of groundwater flow in the 

Magothy aquifer at the Turner Pit is south/southeast;115 (ii) the average background groundwater sulfate 

level is 15 mg/L (maximum: 50 mg/L); while the monitoring data for wells MW-7 and MW-13 prior to 

the pump-and-treat system are several thousand mg/L. (iii) At MW-13, located externally and downgradient from the recovery wells, data indicate that elevated sulfate , chloride, lithium, cadmium, and 

thallium leachate and acidic pH have migrated beyond the effective line of the recovery wells. 

Contaminants continue to move down-gradient and offsite as evidenced also by the monitoring data for 

MW-27 and MW-28.116

A recent study117 modelled the potential for vertical migration of contaminated groundwater at the Turner 

Pit to the underlying, confined aquifers. It challenges MDE’s assertion that for the confined aquifers 

underlying the two gravel pits “There is little or no risk from surficial contamination” from fly-ash 

leachate in the overlying Magothy aquifer.118 The study predicts that the plume might reach the Upper 

Patapasco aquifer within 15 years from the inception of migration, and the Lower Patapasco aquifer -

within 50 years. However, there are currently no monitoring wells that penetrate those aquifers.

In December, 2007, the impacts of re-suspended CCRs on a Maryland residential community adjacent to 

the Gambrills mine reclamation site were documented in a study119 that showed that CCR fugitive dust, 

emanating from the disposal site, were present in all the samples collected throughout the community.

Resolution: On October first, 2007, MDE filed a consent order in Anne Arundel County, Maryland 

Circuit Court to settle an environmental enforcement action against BBSS Ltd., the owner of the sand and 

 

110 Lead exceeded of the federal MCL (0.015ppm) by 0.008ppm in one well is interpreted by Constellation Energy 

as ‘probably related to household plumbing.’

111 Thallium: from ~ 0.010 mg/L in 2005 to below the MCL (<0.002 mg/L) in the first quarter of 2011; sulfate: from 

~3,600 mg/L in 2002 to ~200 mg/L in the first quarter of 2011.

112 Thallium: from ~ 0.013 mg/L in 2005 to 0.004 mg/L in the first quarter of 2011; sulfate: from ~2,100 mg/L in 

2008 to ~350mg/L in the first quarter of 2011

113 Sulfate: from ~2,500 mg/L in 2007 to ~1250mg/L in the first quarter of 2011.

114 Thallium: from ~ 0.011 mg/L in 2007 to 0.003 mg/L in the first quarter of 2011; sulfate: from ~1,200 mg/L in 

2007 to ~400mg/L in the first quarter of 2011.

115 Bouwer (2010): based on seven down-grade monitoring wells (MW-7, MW-8, MW-9, MW-10, MW-13, MW-16, 

and MW-26) and five recovery wells (at the Pit’s southeast corner) in the Magothy Aquifer at the Turner Pit site 

installed in 2004. 

116 Bouwer (2010): seven new monitoring wells were installed in August 2010 to monitor groundwater 

contamination in the vicinity of the Turner Pit, and one new recovery well. Four of these new monitoring wells 

(Wells MW-27, MW-28, MW-33, and MW-34) are located in the median strip of Maryland Route 3, to the 

south/southeast of the Turner Pit. Samples collected from MW-27 and MW-28 in September 2010 showed sulfate 

concentrations of 81 and 99 mg/L, respectively, above the background groundwater concentrations.

117 Garven (2010) 

118 As stated in their February 23, 2010 email to the author.

119 Environment Maryland comment to the CCR proposed rule docket (EPA-HQ-RCRA-2009-0640-4041).
I. CCR Proven Damage Cases December 2014

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gravel quarry, and CE, the owner of the coal fired power plants, for contamination of public drinking 

water wells in the vicinity of the sand and gravel quarry; a $1 million fine was imposed on CE.120

On October 1, 2007, Anne Arundel County passed legislation banning the disposal of CCRs in the 

County for one year, compelling CE to haul the CCRs from its two Maryland power plants to a landfill in 

Virginia, some 200 miles away. 

On February 5, 2009, a $54 million settlement was finalized between 84 property owners and CE.121 The 

settlement calls for CE to pay to convert 84 homes from well water to public water;122 set up two trust 

funds to compensate impacted property owners and to enhance the neighborhood; remediate and restore 

the former quarry site; and cease future deliveries of new coal ash to the quarry. The site has been inactive 

since September 2007.

A groundwater extraction and treatment system has been operational since February 2012. The system

revolves around a capture zone at the downgradient end of the WCP-TP hydrogeological system; Exelon 

(the current corporate owner) claim that the startup of recovery well RW-6 is making any migration of 

ash-constituents downgradient of TP unlikely.123 Based on the potentiometric surface in the vicinity of the 

six recovery wells and the capture zone assessment, as of September 2013 hydraulic capture is being 

successfully maintained at the downgradient end of the Turner Pit.

The data developed since the trends summary report prepared in 2012 show a generally continuing 

improvement in the groundwater quality in wells downgradient to the WCP and TP for nearly all analyzed 

parameters, including data that is at or below the Consent Decree Appendix A remedial goals in the 

 

120120 The Consent Decree includes requirements for re-sampling the residential wells, replacement of five impacted 

wells and connection of all the other impacted wells to the County’s public water system; installation of additional; 

monitoring and Pump and Treat recovery well(s), and measures for source and plume control. The defendants are 

required to (i) cease disposing of CCRs in the pits, unless subject to a pollution prevention plan approved by MDE, 

including laying a composite liner in an active cell (6”- thick clay with permeability of 1x10-7cm/sec covered by a 

60-mil synthetic liner or an equivalent) and a leachate collection system. (ii) Cap the site with a 12” thick clay cap 

with permeability of 1x10-7cm/sec or an equivalent; and (iii) continue groundwater monitoring even after the

mining permits for the two pits expire, with a quarterly reporting and an annual, long-term trend analysis and a 

summary of the status/effectiveness of the treatment systems in meeting the remediation goals. The 2008-2013 

reports can be viewed at Constellation Energy (2013). 

On September 17, 2010, CE provided to MDE a revised remediation proposal, (supplementing its May, 

2008, proposal) that would include the following elements (Constellation Energy (2013), and Constellation Energy 

Community Ash Update/Summary of Most Recent Developments, 2013:

http://www.communityashupdate.com/qa_summary.html): The development cap would be installed as proposed at 

TP; an enhanced cap for WCP, consisting of (from top down) 6 inches of topsoil; a 24‐inch rooting layer; a 

geocomposite or 6‐inch sand drainage layer; and a clay, GCL, and/or synthetic barrier layer; the existing cap at 

WCP to be extended to limit vertical infiltration in swales outside the focused source control area; focused source 

control to reduce lateral infiltration into WCP (being implemented by relocation of the existing sediment pond); 

institutional controls for the ash fill areas and continued groundwater monitoring; add two additional extraction 

wells, RW‐7 and RW‐8, along Route 3 northeast of the current Brickhead Road and the existing line of extraction 

wells RW‐1 through RW‐6; and add two additional extraction wells, RW‐9, RW‐10, along the east side of WCP in 

the vicinity of monitoring well MW‐21.

121 Baltimore Business Journal (2008) and Constellation Energy (2013).

122 According to Constellation Energy (2013), completion of the water line installation project was anticipated by the 

end of 2013.

123 The system includes eight recovery wells and a pump house building located near the shopping center entrance 

off Evergreen Road. The extraction wells (listed from south to north, in parallel to Route 3) are RW-06, RW-01R, 

RW-02R, RW-03R, RW-04R, RW-05R, RW-07, and RW-08. The extraction system reconfigured the potentiometric 

surface from its original southeastern slope to a southern slope, with two large depression cones around the 

extraction wells at the southern edge of the WCP (The third quarter 2013 report, Fig. 8).
I. CCR Proven Damage Cases December 2014

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established compliance wells. According to Constellation Energy (2013), this is a testimony to the 

effectiveness of the extraction well system as well as to the effectiveness of the ash pit capping system in 

eliminating potential sources of surface water infiltration into the ash. The third quarter 2013 groundwater 

monitoring results124 show that the exceedances of arsenic (0.02 to 0.04 mg/L) and cadmium (0.005 to 

0.006 mg/L) are confined to well MW-24, which is monitoring the characteristics of the leachate in the 

center of the WCP.125 However, notable exceedances downgradient include thallium (maximum of 0.007 

mg/L) in multiple wells (five of which are capture wells at the southern boundary of the TP), sulfate - in 

multiple wells (maximum of 3,300 mg/L), boron (up to 7.2 mg/L), lithium (up to 5 mg/L) and nickel 

(0.14 mg/L).126

Recently, a mixed-use commercial project - Village South at Waugh Chapel – has been completed 

adjacent to the TP.

127 This development is at odds with an environmental engineering evaluation 

suggesting that the construction of the project above the Turner Pit’s impact area is not recommended 

until the remediation system is modified to better capture the contaminant plume and a more effective 

monitoring plan is implemented, including a possible future need to excavate “hot spots” of 

contamination in the TP.128

Previous Basis for Consideration: Scientific: Documented exceedances of MCLs in numerous off-site 

drinking water wells; Administrative: on October 1, 2007, the Maryland Department of the Environment 

(MDE) filed a consent order in Anne Arundel County, Maryland Circuit Court to settle an environmental 

enforcement action against the owner of a sand and gravel quarry and the owner of coal-fired power 

plants for contamination of public drinking water wells in the vicinity of the sand and gravel quarry.

ICF (2010) Rationale: Proven Damage. <Offsite MCLs exceedances were reported. Administrative 

order found contamination of offsite drinking water wells impacted public.>

Postscript: In EPA’s 2007 report, this site (‘Constellation Energy, Crofton’) was listed as 

Indeterminate.129 However, subsequent monitoring well data, state administrative action, and court 

settlement between residents with impacted wells and Constellation Energy, all support the designation of 

this site as a proven damage case. 

References

EPA (2014): Regional Screening Level (RSL) Soil to Groundwater Supporting Table (TR=1E-6, HQ=1)/ 

Mid-Atlantic Risk Assessment, May 2014. Accessed Online September 2014.

http://www.epa.gov/reg3hwmd/risk/human/rb-concentration_table/Generic_Tables/index.htm

 

124 There, Table 1 – Total Metals in Groundwater, and Fig. 8: Potentiometric Map.

125 In the 2013 July and August samplings, this well had also the following concentrations: Chloride: 3,200 mg/L; 

Sulfate: 3,300 mg/L; TDS: 10,000 mg/L; Boron: 28 mg/L; and Lithium: 24 mg/L. 

126 Some increases observed in some monitoring parameters at Turner Pit (i.e., monitoring wells MW 7 and MW-13) 

are attributed by Exelon to locally changed groundwater flow patterns that resulted from the relocation of particular 

wells. For additional information on the site’s status of remediation, see the site’s quarterly reports and the Annual 

Trend Analysis – 2013, April 24, 2013, all accessible at Constellation Energy (2013).

Concerning lithium, for reference: the oral PPRTV for lithium is 2.0E-03 mg/kg-day (EPA, 2014); 

Michigan’s drinking water clean-up standard for lithium is 0.17 mg/L; and the EPA regional screening level (RSL) 

and PADEP medium-specific concentration (MSC) of lithium is 73 μg/L (ATSDR, 2013).

127 Siegel (2011). The Project was planned to include over 500,000 square feet of retail, 427,000 square feet of 

residential, and 130,000 square feet of office space.

128 Bouwer (2010).

129 EPA (2007), Table 2.
I. CCR Proven Damage Cases December 2014

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ATSDR (2013): Health Consultation: Chesapeake ATGAS 2H Well Site Leroy Hill Road, Leroy, Leroy 

Township, Bradford County, Pennsylvania, October 29, 2013. U.S. Department of Health and Human 

Services, Agency for Toxic Substances and Disease Registry Division of Community Health 

Investigations Atlanta, Georgia. Accessed Online September 2014.

www.atsdr.cdc.go

Constellation Energy (2013): Community Ash Update/Filings and Documents, 2013. Accessed Online 

September 2014.

http://www.communityashupdate.com/documents.html

Siegel (2011): “Development Cap” at Coal Ash Landfill: Village South at Waugh Chapel, Gambrills, 

Maryland. Lenny Siegel, December, 2011. Accessed Online July 2012. 

http://www.cpeo.org/pubs/WaughChapel.pdf

Bouwer (2010): Assessment of Contamination at the Fly Ash Disposal Site, Gambrills, Maryland. 

Edward Bouwer, Dept. Geography and Environmental Engineering, Johns Hopkins University, 

Baltimore, MD, December 10, 2010. Accessed Online July 2012. 

http://www.aacounty.org/News/Resources/20101010_Bouwer_Report_Gambrills.pdf

Federal Register/Vol. 75, No. 118 / Monday, June 21, 2010/Hazardous and Solid Waste Management 

System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from 

Electric Utilities (CCR Proposed Rule).

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2009-0640-0352

Garven (2010): A Hydrogeologic Analysis of Fly-Ash Contamination of Regional Aquifers in the 

Gambrills-Waugh Chapel Area, Anne Arundel County, Maryland. Grant Garven, Dept. Geology and 

Civil and Environmental Engineering, Tufts University, Medford, MA, December 6, 2010. Accessed 

Online July 2012. http://www.croftonfirst.org/documents/Garven-report-Dec6-2010.pdf

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #27. ICF, 10/2010. 

NRT (2010): BBSS Remediation Alternatives Analysis; Supplemental Submittal, BBSS Site, September 

17, 2010. Accessed Online June 2012.

http://www.communityashupdate.com/pdf/BBSS-Remediation-Alternatives-Supplemental-Submittal-9-

17-2010.pdf

Baltimore Business Journal (2008): Constellation reaches $54M settlement on fly ash lawsuit, 

12/31/2008. Accessed Online July 2012. 

http://www.bizjournals.com/baltimore/stories/2008/12/29/daily26.html

NRT (2008): Alternatives Analysis and Proposed Remediation Report, BBSS Site, Millersville, 

Maryland, Project No. 1892, Natural Resource Technology, Inc. May 5, 2008. Accessed Online July 

2012.

http://www.communityashupdate.com/pdf/BBSS%20Alternatives%20Analysis%20and%20Proposed%20

Remediation%20Report.pdf

Andreasen (2007): Optimization of Ground-Water Withdrawals in Anne Arundel County, Maryland, from 

the Upper Patapsco, Lower Patapsco, and Patuxent Aquifers Projected through 2044, David C. 

Andreasen, June 2007, Department of Natural Resources, Resource Assessment Service, Maryland 

Geological Survey, Report of Investigations No. 77. Accessed Online September 2014.
I. CCR Proven Damage Cases December 2014

32

www.mgs.md.gov/reports/RI_77.pdf

Anne Arundel (2007): Well Water Testing Area: Anne Arundel County Department of Health, January 

16, 2007. Accessed Online July 2012.

http://www.aahealth.org/pdf/summerfield-area-map-round-4.pdf

EPA (2007): Coal Combustion Waste Damage Case Assessments, Table 2, docket ID EPA-HQ-RCRA2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

MDE (2007): Fact Sheet –Coal Fly Ash and Its Health Risks. Anne Arundel County & Maryland

Department of Health, November 2007.

http://www.mde.state.md.us/assets/document/AA_Fly_Ash_QA.pdf

Phillips (2007): Impacts of Fly Ash on Groundwater in Anne Arundel County, Maryland, Frances B. 

Phillips, Maryland Association of County Health Officers Meeting, Baltimore, Maryland, October 11, 

2007. Accessed Online July 2012.

http://www.aahealth.org/gambrills_101107_files/frame.htm 

Versar (2007): Assessment of Water Quality Impacts Associated with Use of Coal Combustion Products 

as Structural Fill at the BBSS Site, Maryland Power Plant Research Program Report 142; DNR 12-

6182007-221, June 2007. Accessed Online July 2012. 

http://esm.versar.com/pprp/bibliography/PPRP_142/PPRP-142.pdf

PR06. PEPCO (Mirant, GenOn, NRG)130 Morgantown Generating Station Faulkner OffSite Disposal Facility, Morgantown, Charles County, Maryland131

Type: Landfills, Settling and Leachate Ponds, Artificial Wetland.

Description: Landfills at this shallow groundwater site have managed fly ash, bottom ash, and mill 

reject pyrites from the Morgantown Generating Station starting in 1970 until their recent closure.132

Located about six miles north of the power station, a score of unlined settling and leachate collection 

 

130 On December 3, 2010, Mirant merged with RRI Energy, Inc., forming GenOn Energy, Inc. GenOn was 

purchased, in turn, by NRG Energy in December 2012.

131 For the 2008, 2010, and 2011 volumes and compositions of CCRs, see Annual Generator Report (2008), Annual 

Generator Report (2010), and Annual Generator Report (2011), respectively.

132 Of the site’s 800 acres, 180 acres have been utilized for the disposal of CCRs: Disposal Pit 1 (also known as 

Phases I and II) operated from 1970 through1979; Disposal Pit 2 (also known as Phases III and IV) operated from 

1979 through1989. Disposal Pits 1 and 2 comprise jointly 132 acres. The Curtis Disposal Pit (49 acres) began 

operation in 1989 and is slated for closure once GenOn submits a plan for closure and capping that is approved by 

MDE (MDE, 2011). For the location of the different disposal pits, see Figure 2-1 in Price and Keating (1991) and 

Figures 1 and 2 in PPRP (2006). As of the end of 2010, more than 5.5 million cubic yards, or 8,434,800 tons, of 

CCRs have been deposited at the Disposal Site. 

The Morgantown Generating Station occupies a 427-acre site on the Potomac River, just south of Rt. 301 at 

the Harry W. Nice Bridge near the town of Newburg, southern Charles County, Maryland. The Morgantown Station 

was commissioned in 1970 by the Potomac Electric Power Company (PEPCO) and has been in continuous operation 

since that time. "The generating facility presently on the Morgantown site consists, among others, of two 

baseloaded, 620-MW coal and residual oil-fired boilers.” For additional information on the Faulkner Off-Site 

Disposal Facility, see EPRI (1999), pp. 3-38 to 3-60 (“Case Study FA”). 
I. CCR Proven Damage Cases December 2014

33

ponds are used at the site to manage storm water runoff and leachate from the fly ash disposal area.133, 134,

135

Until 1989, mill rejects were co-managed with CCRs comprising acidic ash from bituminous coal in the 

Phase I/II fill. A series of six collection and treatment ponds is located at the eastern end of Phase I/II ash 

fill. One large stormwater/leachate management pond, collecting effluents of the drain system of Phase 

III/IV ash fill is located at the eastern end of that fill, and a similar leachate management pond is located 

at the eastern end of the Curtis Phase ash fill.136 Surface water and groundwater monitoring have been 

conducted on and adjacent to the site since the early 1970s.137 This site was cited as proven damage in the 

March 1999 Report to Congress138 and in EPA’s 2007 Coal Combustion Waste Damage Case 

Assessments Report.139

The Faulkner Site is located in the Atlantic Coastal Plain Physiographic Province. The site’s natural 

topography slopes towards the east with elevations ranging from about 160 feet above sea level (AMSL)

at the western end to about 25 feet AMSL at the eastern end, close to the Zekiah Swamp Run.140 The site 

is located in Pleistocene-age alluvial terrace deposits (up to 50 feet-thick undifferentiated sands, clays and 

gravels). These deposits are underlain by the Miocene-age Calvert Formation (30 to 170 feet-thick sandy 

or silty clays to fine silty to clayey sands). The uppermost water-bearing zone is usually under unconfined 

conditions while the successively deeper aquifers tend to be under confined conditions. The groundwater

table in the terrace deposits can fluctuate three to eight feet; groundwater flows generally west to east, 

towards the Zekiah Swamp Run and/or its tributaries (Bowling Creek, the South Stream and the North 

Stream). The hydraulic conductivity in the alluvial aquifer is significantly higher (from 32.9 to 100.8 

ft/day) as compared to that of the Calvert Formation (0.004 to 0.2 ft/day).141

On February 1, 1997, MDE issued an NPDES Discharge Permit to PEPCO,142 authorizing the discharge 

of certain pollutants from Outfalls 001 and 002.143 The Discharge Permit was based on an application 

submitted by PEPCO on June 8, 1993. While the permit application identified arsenic, cadmium, copper, 

 

133 Fly ash is handled in the Morgantown Station dry and transported to the disposal facilities by truck. Additional 

disposal sites used by the Morgantown Station include the Brandywine Ash Site (some 29 miles north) in Prince 

Georges County, and Maryland and the Waste Management King George Landfill (some 23 miles south) in 

Virginia.

134 According to DNR (2008) and Annual Generator Reports (2010 and 2011), FGD gypsum, generated in the 

Morgantown Station since the installation of wet scrubber in 2009, is conveyed to a storage dome and then sent via 

barge to Buchannan, New York, to a wallboard plant. Sub-spec gypsum is either sold for agricultural use or 

transported for disposal to Waste Management’s Amelia Landfill in Jetersville, Virginia.

135 According to Annual Generator Report (2008), bottom ash is conveyed out of the bottom of the Morgantown 

Generating Station’s boiler via a drag chain conveyor. The bottom ash is then prepared for sale, used on site or sent 

to the Faulkner Ash Site where it was often used in the construction of fly ash disposal cells.

136 EPRI, ibid, and Figure 1 in PPRP (2006).

137 Monitoring has been conducted by both the Maryland Department of Health and Mental Hygiene (DHMH) and 

PEPCO. Having acquired PEPCO’s generation assets in December 2000, Mirant Mid-Atlantic, Inc. continued the 

water quality monitoring initiated by PEPCO. The Disposal Site is monitored by 23 groundwater wells as described 

in the Discharge Permit (for well locations, see Figure 2 in PPRP, 2006). Water quality of Bowling Creek and South 

Stream are sampled from four surface water locations that border the Disposal Site, and water quality of the 

treatment cells and discharges are sampled from Outfalls A, C and F.

138 Technical Background Document (1999).

139 EPA (2007).

140 The Zekiah Swamp Run, which drains into the Wicomico River, is part of the Chesapeake Bay watershed.

141 EPRI, ibid. For additional information on groundwater levels, their seasonal fluctuations and interaction with 

surface water in the Zekiah Swamp Run Basin area, see Hopkins et al., (1986).

142 Permit No. MD-005 6928 (State Discharge Permit No. 93-DP- 1623).

143 This discharge permit was later transferred from PEPCO to Mirant Ash, the new site owner as of December 22, 

2000.
I. CCR Proven Damage Cases December 2014

34

lead, mercury, nickel, selenium, silver, and zinc as" present," the pollutant concentrations disclosed were

very low and not at levels that would cause or contribute to violations of water quality standards. 

Consequently, the Discharge Permit did not include effluent limitations for these pollutants.144

Impact: Two biologic studies conducted in the early 1980s identified elevated levels of metals in the 

alluvial aquifer and in surface water of the intermittent tributaries of the Zekiah Swamp Run, but did not 

identify any associated adverse impacts on flora and aquatic fauna.145 In 1991, the state of Maryland 

found that water quality in a nearby stream and creek was degraded by landfill leachate, with effects 

including orange staining from iron precipitation and low pH (2.65 to 4).146 Groundwater quality results 

indicated that a plume of elevated sulfate, calcium, TDS, iron, nickel and zinc extends as far as some 

1,500 feet down-gradient (east) from the sedimentation ponds in the alluvial aquifer. Initially, the acidic 

leachate was believed to have resulted from pyrite (coal mill rejects) oxidation.147 However, all the 

remedial measures taken at the site during the 1990s onwards failed to prevent polluted leachate from 

impacting groundwater and surface water. 

The utility conducted a comprehensive monitoring program from March 1995 to August 1997 to (i) 

evaluate the overall impact of the site activities on water quality and biota in the intermittent streams 

draining the site and in the Zekiah Swamp Run, and (ii) evaluate changes in South Stream adjacent to the 

area where the mitigation measures were implemented. This program revealed that there was a substantial 

extension, in 1996-97, of the area of leachate influence from what was observed in 1988. North Stream, 

tributary of the Zekiah Swamp Run and Mud Creek, which were unaffected in 1988 have since been 

impacted.148 A statistical analysis of six chemical parameters of quarterly groundwater monitoring data 

(from 1989 through January 1999) from the Faulkner ash disposal site indicates that while the Calvert 

Formation aquifer (wells FN-4 and FN-2D) have not been affected by the ash disposal operations, the 

alluvial aquifer down-gradient (wells FN-1, FN-2S, and FN-3) shows an increasing temporal trend in 

sulfate, chloride, total iron, total manganese, and TDS, implying that disposal Phases I-IV have impacted 

the groundwater quality down-gradient of the ash disposal area.149 Finally, five recent quarterly discharge 

 

144 MDE (2011). On June 11, 2001, Mirant Ash submitted to DEM an application for renewal of the Discharge 

Permit. In this application, Mirant Ash reported, counter to its own protracted monitoring records, that most of the 

pollutants identified as "believed present" in the 1993 application (i.e., aluminum, arsenic, barium, beryllium, 

cadmium, chromium, cobalt, copper, cyanide, lead, mercury, selenium, silver, and tin) were "believed absent.” In 

addition, Mirant Ash failed to identify sodium and chloride as being present in the discharge.

145 Simek et al., (1983) and Klose and Potera (1984). 

146 Price and Keating (1991) and EPRI, ibid. The chemical analyses of surface water samples from the South Stream 

showed also elevated levels of sulfate and chloride, high TDS and high specific conductivity, all corresponding to 

the Pond 2 chemical characterization data, indicating the probable source.

147 Technical Background Document (ibid).

148 EPRI, ibid, Appendix C. The utility postulates that the effects on these two streams are related to the site 

expansion for ash storage. According to MDE (2011), discharges of pollutants from Outfalls A, C and F are not 

authorized in any concentrations because these outfalls are not identified as discharge points in the Discharge 

Permit. Samplings of discharges from Outfalls A, C and F, however, show concentrations of cadmium, copper, lead, 

and selenium exceeding water quality standards and Total Suspended Solids exceeding 30 mg/L. Surface water 

sample results reported by Mirant Ash show cadmium above numerical chronic ambient water quality criteria at all 

four surface water sampling locations within Bowling Creek and South Stream.

149 Similar time series for groundwater wells FC-2 and FC-3, which are screened in the alluvial aquifer downgradient of the new Curtis Phase ash fill show elevated concentrations of sulfate, TDS, and chloride with a highly 

acidic pH (EPRI, ibid, Fig. 3-30). Overall, fifteen monitoring wells have shown results above the 250 mg/L SMCL 

for sulfates with the highest concentration of 2,800 mg/L occurring in monitoring well FC-3. Nine wells reported 

TDS levels higher than the 500 mg/L SMCL with FN-3 having the highest concentration at 3,400 mg/L (EPRI, ibid, 

Table 3-10, and Appendix C: Time-Series Plots for Selected Wells at FA Site). At least seven of the wells reported 

manganese levels 50 to 60 times greater than the SMCL. Dissolved cadmium levels have exceeded the MCL in 

approximately nine wells. Several wells showed significant levels of aluminum and chlorides in excess of the 
I. CCR Proven Damage Cases December 2014

35

monitoring reports (from the first quarter of 2009 to the first quarter of 2010) show exceedances of MCLs 

in all of the groundwater monitoring wells subject to the Discharge Permit.150 Because the settling ponds 

were not adequately lined, heavy metals that sink to the bottom of the ponds continue to leach into the 

alluvial aquifer, which is hydro-geologically connected to tributaries of Zekiah Swamp Run.151

Resolution: Following MDE’s 1991 findings about the degradation of water quality in a nearby stream 

and creek, a battery of remedial measures was taken at the site: installation of liners in newer units (1993), 

installation of a cement-bentonite slurry wall around the pond system at the east end of Phase I/II ash fill 

to prevent ground water migration (1994-95), rehabilitation of a portion of a stream (1995), closure and 

clay-bentonite capping of older units to reduce the overall volume of leachate generation (1997),152

discontinuing mill reject co-management at the facility, constructing a leachate collection and treatment 

system at the South Stream and down-gradient of Phases I through IV and the Curtis Phase landfills 

(1994) (pumps, subsurface drains, wells, liners, and six settling ponds; with wastewater aerated and 

treated with soda ash before discharge via Outfall 001), as well as installation of an artificial wetlands 

(2002).

In July 1995, PEPCO agreed to pay $975,000 in fines to make amends for violations of environmental 

law at the Site, whereby a corporate supervisor and others he directed had been bypassing the company's 

wastewater treatment system and dumping the contents of some holding ponds into Zekiah Swamp. The 

pumping usually was done overnight or on weekends between 1990 and 1993.153

In January 2001, the Maryland Department of the Environment (MDE) Water Resources Administration 

(WRA) issued a Consent Order requiring Mirant to address the nature and extent of the ground water 

impacts and to implement corrective action to mitigate them. 

 

SMCL, and eight wells showed sulfate levels that are 5 to 8 times the SMCL (MDE, 2011). Since the utility has 

indicated that no mill rejects containing pyrites have ever been placed in the Curtis Phase, the observed impacts in 

the alluvial aquifer down-gradient of Phases I through IV and the Curtis Phase ash fill must have been all caused by 

the acidic fly ash leachate (EPRI, ibid). This conclusion is supported by the similarity of the available chemical 

composition data for the various leachates from the Faulkner landfill to those of the groundwater data in the five 

analyzed wells.

150 MDE (2011). Outfall, surface water, and groundwater samples collected on October 5, 2010 revealed excessive 

amounts of selenium and chloride that exceed water quality standards. A sample from Outfall 001 revealed a 

selenium concentration of 7.0μg/L. A surface water sample taken from a sampling station in Upper Bowling Creek 

revealed a selenium concentration of 5.7μg/L. Both of those test results constitute exceedances of the Maryland 

numerical water quality criteria and the national recommended water quality criteria established by the EPA of 

5.0μg/L for selenium. A sample from Outfall 001 revealed a chloride concentration of 724 mg/L. A surface water 

sample taken from monitoring well F-8 revealed a chloride concentration of 610 mg/L. Thus, both of those test 

results constitute exceedances of the chronic national non-priority pollutant water quality standard of 230 mg/L for 

chloride. Groundwater exceedances of cadmium, iron, manganese, aluminum, sulfate, chloride, TDS and pH were 

recorded in up to ten groundwater monitoring wells sampled between the first quarter of 2009 and the first quarter of 

2010 (MDE, 2011a).

151 MDE (2011).

152 However, according to MDE (2011), “Disposal Pits 1 and 2 were covered with soil but not with an impermeable 

cap.”

153 The Baltimore Sun (1995).
I. CCR Proven Damage Cases December 2014

36

In December 2002, Mirant completed installation of three passive water treatment systems (artificial 

wetland) to treat the acidity, metals, and sulfate in the leachate-impacted groundwater.154 These systems 

supplemented the leachate collection systems installed in 1994.155

A recent study156 indicated that ground water quality down-gradient of the CCR fill areas is in a relatively 

steady-state condition with little improvement of sulfate concentrations likely to occur over an extended 

period of time. However, improvement to surface water quality is likely to occur with respect to metals 

and acidity as a result of the constructed treatment systems’ ability to attenuate these parameters in 

effluent discharged to the on-site streams. Upstream portions of the tributaries to Zekiah Swamp Run 

have shown significant water quality improvements (decreases in sulfate, acidity and metals). Ground 

water and surface water modeling indicates that the concentrations of sulfate in on-site tributaries to 

Zekiah Swamp Run are not expected to increase beyond their current levels. Although concentrations of 

sulfate in surface waters are not expected to decrease to pre-1970 levels within the next 40 to 50 years, the 

concentration of sulfate in the unnamed tributary to Zekiah Swamp Run is expected to decrease by 

approximately 60 percent by the year 2050. Finally, additional improvements in surface water and ground 

water quality are expected to occur, specifically with respect to dissolved metals and pH.157

In May 2008, MDE filed a lawsuit in state court against the Faulkner site.158 Early in January 2011, MDE 

withdrew this lawsuit in order to file notices of intent to sue Mirant Mid-Atlantic LLC and its subsidiary, 

Mirant Maryland Ash Management, in federal court for alleged water pollution violations.159 The notice 

alleges violations at Mirant's Faulkner disposal site, in and around the ecologically sensitive Zekiah 

Swamp and tributaries of the Wicomico River, part of the Chesapeake Bay watershed.160

The Faulkner site closed in 2010, and Mirant temporarily disposed of the Morgantown Station’s fly ash at 

the Brandywine facility while developing a CCR thermal treatment system (Staged Turbulent Air 

 

154 The Passive Water Treatment System comprises Systems A and C (three treatment ponds each) in Upper 

Bowling Creek, between Pits 1 and 2, and System F (six treatment ponds) next to North Stream and down slope 

from the Curtis Phase fill (Figures 1 and 2 in PPRP, 2006, MDE, 2011, and Figures 2 to 4 in PPRP FFAS-06-1, 

2006).

155 According to PPRP (2006), the leachate collection systems consist of a series of interconnected drains designed 

to capture about 85 percent of the groundwater at the site. The captured water is directed to the passive treatment 

systems - a series of wetlands, limestone beds, and organic-rich reactive cells. The limestone neutralizes acidity: as 

pH increases, iron and aluminum precipitate as hydroxides. The removal of iron and aluminum also helps to prevent 

the generation of acidity and low pH conditions once the treated water leaves the system. Dissolved iron and 

aluminum are positively charged ions that may interact strongly with negatively charged soil surfaces. These 

interactions often displace hydrogen ions, which are held more weakly by the soils. This displacement results in 

lowered groundwater pH values as well as increased acidity. Metals are also removed through ion exchange, 

adsorption, and absorption to the organic media in the reactive cells and wetlands. In addition, the organic material 

promotes anaerobic conditions allowing sulfate to be converted to sulfide which can react with dissolved metals to 

precipitate as sulfide minerals. As the treated water flows to impacted areas downstream, elevated total dissolved 

solids concentrations in groundwater which discharges to the streams should be reduced and acidic soil conditions 

that have built up over the years due to ion exchange reactions should be neutralized.

156 PPRP, ibid.

157 The Study concludes that based on these results, an evaluation of the technical and cost feasibility of innovative 

in-situ treatment techniques that will enhance microbially-mediated sulfate reduction within the aquifer downgradient of the CCR fill areas is a reasonable next step.

158 Maryland Department of the Environment v. Mirant Maryland Ash Management LLC, Md. Cir. Ct., No. C-08-

1255, May 30, 2008.

159 MDE (2011) and MDE (2011a).

160 MDE (2011) and MDE (2011a). According to MDE’s lawsuit, pollutants discharged from the disposal sites 

“include, but not limited to, aluminum, arsenic, barium, cadmium, chloride, chromium, cobalt, copper, iron, lead, 

magnesium, manganese, nickel, pH, selenium, sulfate, TSS, and zinc”; also, The Baltimore Sun (2011).
I. CCR Proven Damage Cases December 2014

37

Reactor, STAR) that will permit it to "process and beneficially use all of the fly ash produced by 

Morgantown and Chalk Point.” The STAR started operating in January 2012.161

According to the utility, in May 2011, the MDE filed a complaint against GenOn in the United States 

District Court for the District of Maryland alleging violations of the Clean Water Act and Maryland's 

Water Pollution Control Law at Faulkner.162 In June 2011, MDE agreed to stay the litigation related to 

Faulkner and Brandywine while GenOn pursues settlement of allegations related to the three Maryland 

ash facilities.163 As a condition to obtaining the stay, GenOn agreed in principle to pay a civil penalty of 

$1.9 million to the MDE if the Utility were to reach a comprehensive settlement regarding all of the 

allegations related to the three Maryland ash facilities.164

A coalition of citizens groups intervened in the January 2011 MDE lawsuit.165 In a joint motion filed 

January 2, 2013 the MDE and GenOn asked the court to enter the proposed consent decree. GenOn 

Energy Inc. agreed to pay a civil penalty of $1.9 million and to perform remedial actions to prevent future 

surface water and groundwater contamination from the Site’s leachate ponds under a proposed consent 

agreement announced January 14, 2013.166 Under the proposed consent decree filed in the U.S. District 

Court for the District of Maryland,167 GenOn Maryland Ash Management (GMAM) would cap and seal 

all closed cells in the landfill and install liner systems in all leachate and stormwater collection ponds, and 

perform a study to characterize the levels of contamination at the Site. GenOn also would develop and 

implement a plan to control fugitive coal dust, which can be released from the ponds.

 

161 According to PPRP-CEIR 16 (2012), in 2010, Mirant Mid-Atlantic, LLC (now GenOn Mid-Atlantic, LLC) 

submitted an application to the Maryland Public Service Commission (PSC) to authorize the modification of the 

Morgantown Generating Station to install a fly ash beneficiation facility to thermally process fly ash into a lowcarbon material suitable for beneficial reuse. Under the proposal, fly ash that was transported from Morgantown and 

Chalk Point to the Faulkner Landfill in Charles County and the Brandywine Landfill in Prince George’s County 

would be processed at the Morgantown Generating Station in a proprietary technology called a Staged Turbulent Air 

Reactor (STAR) and then transported in bulk via truck to markets. Processed fly ash would be sold as a 

supplementary cementing material (SCM) for the manufacture of concrete. Installation of the STAR facility will 

minimize or eliminate the disposal of fly ash in landfills by converting the fly ash into a beneficial mineral 

admixture product. Specifically, Mirant predicts that the STAR system will result in reduction in landfill material of 

360,000 tons per year, and result in the production of 7,265 tons of gypsum per year. The Application was approved 

by the PSC on January 14, 2011, and on January 3, 2012, GenOn began the operation of the STAR facility.

162 GenOn (Annual 2012). The MDE contends that (a) certain of Faulkner’s water discharges are not authorized by 

its existing NPDES permit and (b) operation of the Faulkner facility has resulted in discharges of pollutants that 

violate water quality criteria. The complaint asks the court to, among other things, (a) enjoin further disposal of coal 

ash; (b) enjoin discharges that are not authorized by the existing permit; (c) require numerous technical studies; (d) 

impose civil penalties and (e) award MDE attorneys' fees. GenOn disputes the allegations.

163 GenOn (Quarterly 2011). The third ash disposal facility is Westland, Dickerson Station’s landfill in Montgomery 

County.

164 Accordingly, GenOn also developed a technical solution, which included installing synthetic caps on portions of 

each of the ash facilities. During the three months ended June 30, 2011, GenOn accrued $28 million for the 

estimated cost of the technical solution. In October 2011, the MDE informed GenOn that its proposed technical 

solution was not adequate.

165 Defenders of Wildlife, the Sierra Club, the Patuxent Riverkeeper, and the Chesapeake Climate Action Network.

166 State of Maryland v. GenOn Ash (2013).

167 State of Maryland v. GenOn Ash (2012). The Consent Decree also applies to the Brandywine Ash Management 

Facility in Prince George's County and to the Dickerson power plant’s Westland Ash Management Facility in 

Montgomery County.
I. CCR Proven Damage Cases December 2014

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Previous Basis for Consideration: Scientific: Ground water contamination migrated off site; and 

Administrative: the State required remedial action; and submitted a lawsuit alleging violations at Mirant's 

Faulkner disposal site that impacting the Chesapeake Bay watershed.

Other Considerations:

 In offsite groundwater cadmium exceeded MCL and iron and pH exceeded SMCLs

 Onsite groundwater exceeded SMCLs for aluminum, chloride, manganese, iron, and sulfate 

 Local, shallow aquifer impacted by site may not impact deeper aquifer used as water supply

 Biological impact reports from the early 1980s identified other potential sources including upgradient cadmium and no biological impacts from CCRs

 State required remedial action, based on migration of contaminants in groundwater, charged with 

unpermitted discharge to surface water; State administrative action for vegetative damages, iron 

staining, and low pH.

ICF (2010) Rationale: Proven Damage. <Offsite groundwater exceeded MCLs for cadmium in 

shallow aquifer. State required remediation based on groundwater migration but no explicit finding of 

specific damage from CCRs.>

Postscript: Off-site impacts to groundwater, surface water and the ecology (vegetation damage) and a 

recent Consent Order.

References

State of Maryland v. GenOn Ash (2013): State of Maryland, Department of the Environment, Plaintiff, v. 

GenOn MD Ash Management, LLC, et al. Defendants. Civil Action Nos. 8:11-CV-01209-PJM 8:10-CV00826-PJM 8:12-CV: Joint Motion for Entry of Consent Decree, filed January 2, 2013. Accessed Online 

October 2014.

http://op.bna.com/env.nsf/id/aada-93xsu7/$File/Entry%20Consent.pdf

GenOn (Annual 2012): GenOn Energy, Inc., Form 10-K (Annual Report), filed 2/29/12 for period ending 

12/31/11. Accessed Online October 2012.

http://idc.api.edgar-online.com/efx_dll/edgarpro.dll?FetchFilingConvPDF1?SessionID=5cvrFocpOuKoIS&ID=8447354

PPRP-CEIR 16 (2012): Maryland Power Plants and the Environment: a review of the impacts of power 

plants and transmission lines on Maryland's natural resources. PPRP-CEIR-16 (Cumulative 

Environmental Impact Report, DNR Publication No. 12-1242012-546, January 26, 2012. Accessed 

Online June 2012.

http://esm.versar.com/pprp/ceir16/CEIR-16_Full_Document_Final.pdf

State of Maryland v. GenOn Ash (2012): State of Maryland, Department of the Environment, Plaintiff, v. 

GenOn MD Ash Management, LLC, et al. Defendants. Civil Action Nos. 8:11-CV-01209-PJM 8:10-CV00826-PJM 8:12-CV: Consent Decree, filed December 21, 2012. Accessed Online October 2014.

http://op.bna.com/env.nsf/id/aada-93xrhl/$File/Maryland%20Coal%20Ash%20Final.pdf

Annual Generator Report (2011): Coal Combustion Byproduct (CCB) Annual Generator Tonnage Report, 

Calendar Year 2011, submitted to the Maryland Department of the Environment, August 13, 2012. 

Accessed Online October 2014.

www.mde.state.md.us/.../CoalCombustionByproducts/.../2011%20CCB%...
I. CCR Proven Damage Cases December 2014

39

GeonOn (Quarterly 2011): GenOn Mid-Atlantic, LLC. U.S. Securities and Exchange Commission, Form 

Q-10: Quarterly Report for the Quarter Period Ended September 30, 2011. Accessed Online June 2012.

http://www.knowledgemosaic.com/Gateway/SECData/PDFCache/11/0001193125-11-

303255/kmcomposite.pdf

MDE (2011): Department of the Environment Files Notice of Intent to Sue Mirant for Coal Combustion 

Byproducts Pollution. Maryland Department of the Environment Press Release, January 3, 2011. 

Accessed Online October 2014.

http://www.mde.state.md.us/programs/PressRoom/Pages/010311b.aspx

MDE (2011a): Notice of Intent to File Citizen Suit for Violations of the Clean Water Act at the Mirant 

Faulkner Coal Combustion Waste Disposal Site in Charles County, Maryland. Maryland Department of 

the Environment, January 3, 2011. Accessed Online October 2012.

http://www.mde.state.md.us/programs/PressRoom/Documents/MDE_Faulkner_NOI_03Jan10.pdf

Public Service Commission of Maryland (2011): In the Matter of the Application of Mirant Mid-Atlantic, 

LLC for a Certificate of Public Convenience and Necessity Authorizing the Modification of the 

Morgantown Generating Station in Charles County, Maryland. Before the Public Service Commission of 

Maryland, Case No. 9229, January 14, 2011.

The Baltimore Sun (2011): MD threatens lawsuits over coal ash pollution, January 4, 2011. Accessed 

Online October 2012.

http://weblogs.baltimoresun.com/features/green/2011/01/md_threatens_lawsuits_over_coa.html

Annual Generator Report (2010): Coal Combustion Byproduct (CCB) Annual Generator Tonnage Report, 

Calendar Year 2010, submitted to the Maryland Department of the Environment, February 25, 2011. 

Accessed Online October 2012.

http://www.mde.state.md.us/programs/Land/SolidWaste/CoalCombustionByproducts/Documents/2010%

20CCB%20Generator%20Reports/Morgantown%20Generating%20Station%202010%20CCBC%20Repo

rt.pdf

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #5. ICF, 10/2010.

Annual Generator Report (2008): Coal Combustion Byproduct (CCB) Annual Generator Tonnage Report, 

Calendar Year 2008, submitted to the Maryland Department of the Environment, March 3, 2009. 

Accessed Online October 2012.

http://www.mde.state.md.us/programs/Land/SolidWaste/CoalCombustionByproducts/Documents/www.m

de.state.md.us/assets/document/MCCULLOUGH_MIRRANT_MID_ATLANTIC_LLC.pdf

DNR (2008): Environmental Review of the Air Pollution Control Project at the Morgantown Generating 

Station, June 2008, Maryland Department of Natural Resources Publication No. 12-6132008-318. 

Accessed Online October 2012.

http://esm.versar.com/pprp/bibliography/PPSE-M-02/PPSE-M-02_Chpts1-3.pdf

EPA (2007): Coal Combustion Waste Damage Case Assessments, Case #5, docket ID EPA-HQ-RCRA2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007. Accessed Online June 2012.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

PPRP (2006): Evaluation of Long-Term Surface Water and Ground Water Quality at the Faulkner Fly 

Ash Storage Site Charles County, Maryland, M. Erbe, R. Gwynn, and R. Keating, Environmental 
I. CCR Proven Damage Cases December 2014

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Resources Management, Inc. FFAS-06-2, June 1, 2006, submitted to MD DNR Power Plant Research 

Program (PPRP). Accessed Online June 2012. 

http://esm.versar.com/pprp/bibliography/FFAS_06_2/FFAS_06_2.pdf

PPRP FFAS-06-1 (2006): Evaluation of the Efficiency of the Passive Water Treatment Systems at the 

Faulkner Fly ash Storage Site, Charles County, Maryland, M. Erbe, R. Gwynn, and R. Keating, 

Environmental Resources Management, Inc. FFAS-06-1, June 1, 2006, submitted to MD DNR Power 

Plant Research Program (PPRP). Accessed Online April 2013.

http://esm.versar.com/pprp/bibliography/FFAS_06_1/FFAS_06_1.pdf

EPRI (1999): Guide for Comanagement of Mill Rejects at Coal-Fired Power Plants, EPRI, Palo Alto, CA, 

and USWAG, Washington DC, June 1999. TR-108994. Accessed Online April 2013.

http://www.epri.com/abstracts/Pages/ProductAbstract.aspx?ProductId=TR-108994 

&Mode=download

Technical Background Document (1999): Technical Background Document for the Report to Congress on 

Remaining Wastes from Fossil Fuel Combustion: Potential Damage Cases, March 15, 1999. Accessed 

Online April 2013.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ffc2_397.pdf

The Baltimore Sun (1995): Potomac Electric pays fine to settle fly ash violation: The Baltimore Sun, July 

4, 1995. Accessed Online May 2014. 

http://articles.baltimoresun.com/1995-07-04/news/1995185014_1_pepco-fly-ash-potomac-electric.

Price and Keating (1991): Assessment of Water Quality Impacts from the Faulkner Fly Ash Facility, 

W. Keating, ERM, Inc., Annapolis, Maryland, prepared for the Maryland 

Power Plant and Environmental Reviews Division (PPER), January 1991. Accessed Online April 2013.

http://web.vims.edu/GreyLit/MDNR/pper-mp-59?svr=www

Hopkins et al., (1986): Reconnaissance of the Ground-Water, Surface-Water System in the Zekiah 

Swamp Run Basin, Charles and Prince Georges Counties, Maryland, Hopkins, H.T., G.T. Fisher, and L.J. 

McGreevy. U.S. Geological Survey Water-Resources Investigations Report 86-4097. Accessed Online 

April 2013.

http://pubs.usgs.gov/wri/1986/4097/report.pdf

Klose and Potera (1984): Biological Impacts Studies of the Faulkner Fly Ash Site, Klose, P.N. and G.T. 

Potera. Prepared by ERM, Inc., Annapolis, Maryland, for the Maryland Department of Natural Resources 

Power Plant Siting Program, Annapolis, Maryland, August 1984. PPSP-MP-56. Accessed Online April 

2013.

http://esm.versar.com/pprp/bibliography/PPSP-MP-56/PPSP-MP-56.pdf

Simek et al., (1983): Environmental aspects of the Faulkner Ash Site, Simek, E.M., M.A. Hewitt, and 

G.T. Potera. Prepared by ERM, Inc., West Chester, Pennsylvania, for the Maryland Department of 

Natural Resources Power Plant Siting Program, Annapolis, Maryland, 1983. PPSP-MP-43. Accessed 

Online April 2013.

http://esm.versar.com/pprp/bibliography/PPSP-MP-43/PPSP-MP-43.pdf
I. CCR Proven Damage Cases December 2014

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PR07. Detroit Edison168 Range Road Landfill, St. Clair, East China Township, St. Clair 

County, Michigan169

Type: Offsite Landfill.

Description: This unlined, Type III Low Hazard industrial landfill170 has been operating since the early 

1950s. The licensed landfill area covers about 514 acres.171 The landfill accepted coal ash from three 

Detroit Edison Power Plants: Belle River (1,395 MW);172 Harbor Beach (121 MW),173 and Marysville

(150 MW),174 in addition to a small amount from the Cargill Salt Company’s captive Power Plant (two 

MW).175 In 2011, the landfill accepted close to 350,000 cubic yards of coal ash. 

The Range Road Landfill is divided into nine sections.176 The current procedure for filling the land is to 

remove the top soil, which is clay, and set that material aside. The dry ash is hauled to the landfill and 

dumped (DTE Energy, 2009, Fig. 4-1). Areas G and E, which total 221 acres, still have much of their 

native topsoil and cover, and are designated for future development. 

The landfill is located less than one mile west of the St. Clair River and the co-located U.S./Canadian 

border.177 It is separated from the ‘deep bedrock aquifer’ by at least 70 feet-thick, low permeability

Glacio-lacustrine clay. In 1995, a near surface, 2-18 feet thick silty-sand layer was discovered on the 

eastern side of the landfill that renders the separation between the upper, shallow aquifer and the deep 

bedrock aquifer ineffective. Leachate was determined to be migrating off-site in groundwater and also 

reaching two small ponds. 

 

168 Now: DTE Energy Electric Company.

169 Michigan DNR’s comment to the proposed CCR rule’s docket: EPA-HQ-RCRA-2009-0640-6815, Attachment 5.

170 RCRA Permit #9207, issued April 6, 2009. For the current Operation License, issued June 26, 2014, see 

Michigan DEQ (2014) and Michigan DEQ (2014a). For a site plan of the landfill, see page 9 of the site’s 2014-

issued Operational License.

171 According to the 2009 Operational License (Michigan DEQ, 2009), 275 acres of which are closed, 53 acres are 

inactive but still not capped; and 118 acres are active (the total area comes closer to the 456.5 acres cited by St. Clair 

County, No date). The remainder is designated for future development. According to the 2014 Operational License, 

227 acres are authorized to receive waste and included in the calculation of financial assurance but still 

unconstructed; while 194 acres are not authorized to receive waste on account of having their final cap been certified 

closed and accepted by MDEQ (and see page 9 of the 2014 Operational License for a Site Phasing Legend). 

172 Belle River Power Plant is a major coal- and natural gas-fired power plant (name-plate capacity: 1,664 MW), that 

is located in St. Clair County, Michigan, on the peninsula formed by the St. Clair and Belle rivers. Coal-fired unit 1

of the Belle River plant was completed in 1984, followed by a similar unit 2 in 1985. Burning subbituminous coal, 

the two units have 697.5 MW capacity each. They were preceded (1981) by five oil-fueled internal combustion

generators with the total output 13.75 MW, and followed (in 1999) by three peaker natural-gas fired with the total 

name-plate capacity of 256 MW (Wikipedia, 2013).

173 In 2012, DTE Energy announced that the Harbor Beach Power Plant no longer will operate as a coal-fired plant 

after April 2015, though the shut-down could occur as early as August 2013. The trigger for retirement are the new 

upcoming (April 2015) environmental regulations - the Mercury and Air Toxics Standards and the Cross State Air 

Pollution Rule (Huron Daily tribune, 2012).

174 The Marysvale Power Plant has been shut down since 2001, and as of the end of 2013 was scheduled for 

demolition (Electric Light & Power, 2013).

175 For additional information on the three coal-fueled power plants, see DTE Energy (2009).

176 See landfill site plan on page 9 of DEQ (2014).

177 3600 Range Road, Saint Clair, Michigan 48079. Latitude: 42.79831, Longitude: -82.49372.
I. CCR Proven Damage Cases December 2014

42

Impact: While no drinking water sources are affected, the site has off-site exceedances of the State’s 

health-based standards for lithium,178 boron, and manganese.

179

Resolution: Sections A, B, B1, D1, D2, and 50 percent of F have been capped with 2 feet of clay (the 

other half of the F area is currently being landfilled). A slurry wall was recently installed around the entire 

landfill approximately 2 feet below the level of clay.180 Based on the 2009 Operational License, the site 

has installed leachate collection and storage; a RI/FS for offsite groundwater (revised April 2003); a 

Landfill Perimeter Subsurface Investigation (December 2006); an RI/FS Plan for the Northwestern 

Section Off-Site Groundwater (May 2008); a Remedial Action Plan for Off-Site Groundwater (approved 

February 2009), and a Hydrology Monitoring Plan (April 2009).181, 182

Groundwater monitoring for the ‘deep bedrock aquifer’ was waived in May 1997. The landfill is currently 

unmonitorable with respect to the shallow, discontinuous, saturated sand that exists below the southeast, 

east, north, and northwest areas of the landfill. Because of the limited presence of this shallow, saturated 

sand in the vicinity of the currently active Area F and the unconstructed Area G, the uppermost aquifer in 

these areas is currently considered to be the bedrock aquifer.

Evaluate against Proven Damage Criteria: Scientific: Observation of off-site exceedances of the 

State's health-based standard for lithium, boron, and manganese. Administrative: the State required an

RI/FS and a remedial action plan.

References

Michigan DEQ (2014): Waste and Hazardous Materials Division Solid Waste Disposal Area Operational 

License, Detroit Edison Company, Range Road Ash Disposal Landfill. Accessed Online October 2014.

http://www.michigan.gov/documents/deq/DNRE-WHMD-SWDETROIT_EDISON_RANGE_ROAD_OpLicense_320053_7.pdf

Michigan DEQ (2014a): Range Road Landfill, Michigan DEQ. Accessed Online July 2012.

http://www.michigan.gov/deq/0,1607,7-135-3312_4123-213287--,00.html

Wikipedia (2013): Belle River Power Plant. Wikipedia, last modified on 30 August 2013. Accessed 

Online August 2014.

http://en.wikipedia.org/wiki/Belle_River_Power_Plant

 

178 Michigan’s clean-up standards for lithium are: 170 ppb in drinking water, and 96 ppb for the groundwater-surface 

water interface.

179 DNR (2010).

180 DTE Energy, ibid. The slurry wall is anchored 2 feet into the underlying clay layer (plans submitted in April 

2002 and May 2008; a construction report submitted in February 2009).

181 Additional documents submitted after the 2009 License was granted include three Off-Site Groundwater Capture 

and Discharge System addressing specific areas of the License area (June-July 2009 and May 2010), Southwest 

Ditch Slope Mitigation (June 2010), and Stormwater Circulation Plan (April 2012).

182 According to DTE Energy (2009), if the site was to close down ‘today’, the disturbed area (approximately 10 

acres) would be covered with clay, seeded, and mulched. After closure, the following post-closure activities must be 

supported during the statutory post-closure period of 30 years: testing of 30 odd monitoring wells; maintenance of 

three low head groundwater dewatering pumps, intended to recover a contaminated groundwater plume; occasional 

erosion repair along the 20,000 linear feet of 30 foot high perimeter berms; pumping of contaminated seepage water 

from the toe of the above berm; and build a leachate collection system when the site becomes saturated with water. 
I. CCR Proven Damage Cases December 2014

43

Electric Light & Power (2013): DTE Energy sells Marysville Power Plant to developer. Electric Light & 

Power, 12/13/2013.

http://www.elp.com/articles/2013/12/dte-energy-sells-marysville-power-plant-to-developer.html

Huron Daily tribune (2012): DTE to close Harbor Beach Power Plant. Huron Daily tribune, July 12, 

2012.

http://www.michigansthumb.com/news/local/article_e021f9f6-ea6c-52e1-b498-8140d6d01134.html

Michigan DEQ (2012): Report of Solid Waste Landfills in Michigan, October 1, 2010 – September 30, 

2011. Michigan DEQ Resource Management Division, February 13, 2012. Accessed Online July 2012.

http://www.michigan.gov/documents/deq/DEQ-RMD-SWLAS-SolidWasteAnnualReport_FY11_377392_7.pdf

DNR (2010): Michigan DNR’s comment to the proposed CCR rule’s docket: EPA-HQ-RCRA-2009-

0640-6815, Attachment 5. Accessed Online October 2014.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2009-0640-6815

DTE Energy (2009): Demolition Study, Black & Veatch Ltd. of Michigan, B&V Project 164806,

October 19, 2009. Accessed Online October 2014. (The study provides cost estimates for the demolition 

of eleven DTE Energy fossil fired generating facilities and their associated ash disposal sites).

http://efile.mpsc.state.mi.us/efile/docs/16117/0044.pdf

Michigan DEQ (2009): Waste and Hazardous Materials Division Solid Waste Disposal Area Operational 

License, Detroit Edison Company, Range Road Ash Disposal Landfill. Accessed Online July 2012.

http://www.michigan.gov/documents/deq/DNRE-WHMD-SWDETROIT_EDISON_RANGE_ROAD_OpLicense_320053_7.pdf (No longer accessible)

St. Clair County (No date): Solid Waste Plan/Data Base (including a location map and capacity data as of 

the late 1990s). Accessed Online July 2012. 

http://www.cis.stclaircounty.org/downloads/04_sw_plan_ii_1_through_30.pdf

PR08. JR Whiting Generating Plant, CMS Energy – Consumers Energy,183 Erie, Monroe 

County, Michigan

Type: Surface Impoundments.

 

183 Consumer Energy is a subsidiary of CMS Energy.
I. CCR Proven Damage Cases December 2014

44

Background and Description: The JR Whiting Plant,184 owned by Consumers Energy, went online in 

1952/53 and since then has constructed six unlined impoundments185 close to and on the shore of Lake 

Erie to receive CCRs from the plant.186 These impoundments also receive co-disposed liquid wastes.187 

These wastes include low volume plant wastes, treated boiler cleaning waste, and treated sewage waste 

from the plant’s sanitary sewage treatment facility. Impoundments 3, 4, and 5 received fly ash and 

wastewaters until 2008. Since that year they have only received fly ash and are the primary focus of the 

damage claims. Ponds 3 and 4 were built in 1959, while pond 5 was built in 1974, and the three cover a 

total of 82 acres.188 Final closure of the ponds was approved in 2005189 and is nearing completion. In 

recent years, fly ash disposal at the plant has been minimal, with most being sold for reuse by cement 

manufacturers. The J.R. Whiting Plant was studied for the effects of Impingement and Entrainment of fish 

at its cooling water intake structure.190

Impact and Damage Claims: EIP (2010a) indicates that effluent discharges from the impoundments 

caused ecological damage to aquatic life. The report cites a study undertaken in the early 1980s,

191 which 

looked at discharges from impoundments 3, 4, and 5 into Lake Erie. The study examined toxic elements 

in sediment, fish, and invertebrates near the impoundments and made comparisons to references points 

nearly two miles away. The study found arsenic, cobalt, selenium, and nickel to be elevated in sediments 

near the outfall; however, they were not above Michigan Department of Environmental Quality (MDEQ) 

 

184 J.R. Whiting (4525 E. Erie Road, Erie, MI 48133) is a 346 MW power plant currently operates three (bituminous) 

coal-fired steam-electric units that use cooling water withdrawn from Lake Erie (Units 1-3), and one oil-fired gas 

turbine (Unit 4). The facility is located at Luna Pier, Michigan, on the Woodtick Peninsula, 10 miles north of 

Toledo, Ohio, and 35 miles south of Detroit, Michigan.

(http://water.epa.gov/lawsregs/lawsguidance/cwa/316b/phase2/upload/chh1.pdf). Early in December 2011, 

Consumers Energy announced that in response to existing and pending federal and state environmental regulations 

and ongoing market conditions, the company decided to suspend in 2015 the of operation of the three coal-fueled 

units at the J.R. Whiting Generating Complex, in addition to suspending four additional smaller units elsewhere in 

Michigan (a total capacity of 950 MW; Power Engineering, 2011). Then, in late September, 2013, Consumers 

Energy received approval to delay the retirement of the three coal-fueled units at J.R. Whiting Generating Complex 

because of increased power demand in the state and concerns about power supply reliability. The approval gives 

Consumers the option of continuing operation at the Whiting Plant until April 2016 (Power Engineering, 2013). In 

February 2014, Consumers Energy selected AMEC to represent the company as the owner’s engineer for the 

decommissioning program for the planned retirement of the utility’s three coal-fueled generating units in J.R. 

Whiting (Consumers Energy, 2014).

185 O’Brien & Gere (2011), Appendix A. In addition, there were at least two other waste units (Borrow Pit #1, 5.4 

acre; and Borrow Pit #2, 11.9 acre), which closed at the end of 1989 (Michigan DEQ, 2009).

186 According to O’Brien & Gere (ibid), JR Whiting plant currently operates three impoundments (Ponds 1, 2 & 6) 

for storing and/or settling of CCR. Additionally, another three impoundments (Ponds 3, 4 & 5) were recently closed 

(closure has occurred sometime between August 2009, the date of the most recent Operational License which still 

characterizes these ponds as active – Michigan DEQ, 2009 - and September 2010, when the site dam assessment 

visit - O’Brien & Gere, 2011 - has taken place) and are in the process of being filled and capped. For a site location 

map and a photomap identifying the six impoundments, see O’Brien & Gere (2011) Figs. 1 and 2, respectively.

The system of Ponds 1 & 2, commissioned in the late 1950s and occupying 15 acres (23.8 acres according 

to Michigan DEQ, 2009), is currently the primary location for settling of bottom ash. Pond 6, commissioned around 

1980 and occupying 32 acres (55.5 acres according to Michigan DEQ, 2009), is the primary location for wet-storage 

of fly ash. The State of Michigan most recently licensed Ponds 1 through 6 as Type III industrial Solid Waste 

Disposal Areas (SWDA) under its Part 115 rules on August 26, 2009, Michigan DEQ, 2009). Under this license, the 

facility (as a whole) carries facility identification number 397664 and license number 9224.

187 Regulated by the plant’s NPDES permit (MIO001864)

188 According to Michigan DEQ (2009), the combined area of ash ponds 3, 4, and 5 is 49.8 acre.

189 The partial closure of portions of ponds 3, 4, and 5 was certified on Dec. 28, 2006, July 16, 2008, and April 1, 

2009, respectively. Michigan DEQ (2009).

190 USEPA (2002).

191 Hatcher et al., (1992).
I. CCR Proven Damage Cases December 2014

45

criteria for soil cleanup.192 The study found that arsenic, selenium, and bromine were found at elevated 

concentrations in oligochaetes (freshwater worms) near the coal ash basin. The study also found that there 

were consistently less dense populations of the oligochaetes near the outfall compared to the reference 

sites suggesting that such organisms may be incapable of sustaining high population densities in the face 

of these trace coal ash elements. Selenium, bromine, cobalt, nickel, and chromium were also found at 

elevated concentrations in some fish types, particularly younger fish, near the outfall. 

Concentrations of selenium in fish food organisms were above a chronic dietary toxic level (3 ppm, dry 

weight). Concentrations of selenium in fish tissues reached 14 ppm (whole-body, dry weight), which is 

three and one-half times a toxic threshold (4 ppm).

193 Numbers of benthic invertebrates and fish were 

reduced in the area near the discharge. The study reportedly determined that discharges from 

impoundments to the environment lead to the elevated contaminant levels in the sediments and aquatic 

biota. It determined that chronic exposure to these concentrations could undermine the population fitness 

for various biota particularly those with limited mobility such as freshwater worms or fish in the early 

stages of life.194 The final determination of the study was that placing coal ash impoundments near the 

shoreline and use of CCRs as a constituent for the artificial reef creating blocks should be reevaluated. 

Evaluation against Proven Damage Criteria195

 

192 See also Michigan’s DNRE comment EPA-HQ-RCRA-2009-0640-6815.

193 On the status of the Federal selenium-in-fish regulation, see comment to the proposed rule’s docket: EPA-HQRCRA-2009-0640-2930, Attachment.

194 Lemly (2010) and references therein. Lemly (2010) estimated the monetized value of the damage at $1.5 million

195 ICF (2010).

Criteria Evaluation

Criterion 1: Documented 

exceedances of primary maximum 

contaminant levels (MCLs) or other 

health-based standards measured in 

groundwater at sufficient distance 

from the waste management unit to 

indicate that hazardous constituents 

have migrated to the extent that they 

could cause human health concerns

 None 

Criterion 2: Where a scientific study 

provides documented evidence of 

another type of damage to human 

health or the environment (e.g., 

ecological damage)

 Study (Hatcher et al., 1992) determined that discharges from the 

impoundment had lead to elevated levels of contaminants within 

the sediment and some aquatic biota. It concluded that chronic 

exposure to higher concentrations of these contaminants could 

undermine population fitness particularly for organisms with 

restricted mobility. Multiple instances of excessive selenium 

discharges in the ten years preceding closure of the implicated 

impoundments lend support to the study’s findings. 

Criterion 3: Where there has been an 

administrative ruling or court 

decision with an explicit finding of 

 None
I. CCR Proven Damage Cases December 2014

46

Other Considerations:

 EPA (2007) rejected this as a damage196 (reported as Case #76, Lake Erie, Ohio) because 

evidence did not confirm CCRs as the source of contamination, though EIP (2010a) counters that 

the study was designed to specifically evaluate the effects of discharges from the CCR 

impoundments and that transport of CCR did lead to the elevated concentrations within biota and 

in sediments. 

 Maximum concentrations in sediment outfalls for target elements (arsenic, cobalt, nickel, 

selenium) were below Michigan Department of Environmental Quality criteria for soil cleanup.

 NPDES operating records show eight exceedances of the monthly average standard for selenium 

over the last ten years (1999-2008) from former Outfall 002 from ash ponds 3, 4, and 5. Outfall 

002 was closed in 2008 as part of the process to close these ash ponds as a landfill.197

 Consumers Energy is critical of the Hatcher et al., (1992) study198 based on arguments pertaining, 

among others, to selenium being a vital metal component in aquatic organisms,199 and the study’s 

failure to adequately assess the role of other sources of anthropogenic contamination or the 

contribution of background metals in native sediments. Specifically, Consumers Energy claims 

that the high silt and clay content sediments produced by Bay Creek close to the Power Plant 

would naturally contain more arsenic than the more sandy sediments in the control sites at the 

Woodtick Peninsula, because fine grained sediments adsorb more metals than sandy sediments; 

and soils in the Huron-Erie Glacial Lobe tend to be high in metals, especially arsenic, relative to 

the statewide average. However, the applicability of latter argument calls for a site-specific 

study.200

Resolution: The electric utility company began to landfill coal ash in 2002. Consequently, release of ash 

pond effluent was reduced. Final closure of the ponds was approved in 2005201 and is nearing 

completion.202 Consequently, the facility has ceased discharging fly ash to surface water. However, EPA’s 

 

196 EPA (2007), based on Memorandum from SAIC to Dennis Ruddy regarding Rationale and Conclusions 

Regarding Commenter-Identified Fossil Fuel Combustion Waste Damage Cases, April 20, 2000. 

197 Consumers Energy (2009). 

198 Consumer Energy’s comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0212.

199 See also: Sackett et al., (2010) and Spencer et al., (2009). 

200 The Michigan Background Soil Survey (2005) and Thomas (2003) studied the distribution of arsenic in the 

Huron-Erie Glacial Lobe (the 2005 study compared the levels of arsenic in the Huron-Erie Glacial Lobe’s topsoils, 

sandy deposits and clay deposits to those in Michigan; whereas the 2003 study studied compared, among others, the 

Glacial Lobe’s levels of arsenic in shallow groundwater drinking wells). Unfortunately, though, none of these 

studies has collected any samples in Monroe County, where the J. R. Whiting Plant is located. 

201 According to Black & Vetach (2008), in May 1996, Consumers Energy proposed a final closure for ash ponds 3, 

4, and 5. The final cover in this 1996 design consisted of 18 inches of soil. At a later date, MDEQ requested to 

adjust the cover design so as to comply with current regulations (Rule R299.4304/Part 115). For a Type III landfill 

cover design, these regulations require the use of a flexible membrane liner (FML) protected by at least 24 inches of 

soil and overlain by a minimum of 6 inches of soil for vegetation establishments. Black & Vetach (ibid) conducted a 

dike stability analysis of both the 1996 plan and also of the newly required 30 inches of soil cover. The stability 

analysis conducted for the modified soil cover indicates that the factors of safety against slope failure are adequate 

for long-term stability.

202 According to O’Brien & Gere (2011), wet sluicing of ash to Ponds 3, 4 & 5 ceased operation in 2008. Fly ash that 

was normally sent to Pond 6 is being diverted to Ponds 3, 4 & 5 to expedite final closure of these ponds. The 

diversion operation consists of the dry fly ash being mixed with water and loaded into trucks to transport the 

damp/wet ash to Ponds 3, 4 & 5.In accordance with a closure plan submitted to the State of Michigan, in September 

specific damage to human health or 

the environment
I. CCR Proven Damage Cases December 2014

47

Toxics Release Inventory reported that substantial discharges of contaminants, including mercury and 

vanadium (selenium not reported), to surface waters from the J. R. Whiting Plant continued through 2009, 

which was the latest reporting year available.203

Michigan’s DNRE claims204 that considering that the Hatcher et al., (1992) study reports elevated levels 

of arsenic, cobalt, selenium, and nickel in lake sediments that were below Michigan's cleanup standards 

for sediments, a follow-up investigation will not be required. Furthermore, the impoundments were first 

permitted only in 1979, following the 1978 enactment of Michigan’s Solid Waste Management Act.205

Groundwater and surface water discharge monitoring since then have shown the facility to be in

compliance. In recent years, fly ash disposal at the plant has been minimal, with most being sold for reuse 

by cement manufacturers.

ICF (2010a) Rationale: Inadequate Information, Pending Access to the Original Report (Hatcher, 

1992). < While scientific studies did indicate elevated levels of contaminants in sediment and aquatic 

biota and reduced population densities of biota near the site outfalls relative to reference location, specific 

data linking the damage to CCR contamination is not currently available.>

Postscript: Hatcher (1992) demonstrated that concentrations of selenium in fish food organisms close to 

the JR Whiting’s power plant in Lake Erie were above a chronic dietary toxic level (3 ppm, dry weight). 

Concentrations of selenium in fish tissues reached 14 ppm (whole-body, dry weight), which is three and 

one-half times a toxic threshold (4 ppm). Numbers of benthic invertebrates and fish were reduced in the 

area near the discharge. Discharges from impoundments to the environment at the JR Whiting Plant lead 

to the elevated contaminant levels in the sediments and aquatic biota.

References

Consumers Energy (2014): Consumers Energy Awards Contract to Decommission Oldest Coal Plants. 

Consumers Energy News Release, February 13, 2014.

http://www.consumersenergy.com/News.aspx?id=7038&year=2014

Power Engineering (2013): Consumers Energy receives approval to delay retiring coal fired units, Power 

Engineering, September 25, 2013. Accessed Online August 2014.

http://www.power-eng.com/articles/2013/09/consumers-energy-receives-approval-to-delay-retiring-coalfired-units.html

O’Brien & Gere (2011): Dam Safety Assessment of CCW Impoundments, J.R. Whiting Plant, Final 

Report. Prepared for the Environmental Protection Agency by O’Brien & Gere Engineers, Inc., June 27, 

2011. Accessed Online August 2014.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm#C

 

2010 Consumers Energy was completing final dewatered ash fill placement and constructing the final cover. At that 

time, the final dewatered ash fill placement and cover construction was complete over approximately 1/2 to 2/3 of 

the area. The final cover and grade is currently under construction in the center of the former impoundment complex 

area. Additionally, a runoff diversion berm and engineered run-off let down areas have been completed around the 

perimeter of the covered area and at various locations on the slopes, respectively. Anticipated completion of the final 

cover over the full area of this unit was 2011 – 2012, but a ‘site visit’ via Google Maps (October 8, 2014) revealed 

that a strip of capping in the middle of the otherwise capped impoundments was still incomplete.

203 Lemly (2010).

204 Comment on the CCR proposed rule: EPA-HQ-RCRA-2009-0640-6815.

205 MDEQ’s Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0191.
I. CCR Proven Damage Cases December 2014

48

Power Engineering (2011): Consumers Energy cancels clean coal power plant project. Power 

Engineering, December 2, 2011. Accessed Online August 2014.

http://www.power-eng.com/articles/2011/12/consumers-energy-cancels-cean-coal-power-plantproject.html

EIP (2010a): In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their 

Environment, Thirty-Nine New Damage Cases of Contamination from Improperly Disposed Coal 

Combustion Waste, Case #17. The Environmental Integrity Project, EarthJustice and Sierra Club, August 

26, 2010.

http://www.environmentalintegrity.org/news_reports/08_26_10.php

ICF (2010a): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases. 

Appendix C, Case #17. ICF, 10/2010.

Lemly (2010): A White Paper on Environmental Damage from Coal Combustion Waste: The Cost of 

Poisoned Fish and Wildlife, A. Dennis Lemly, EPA Docket No. EPA–HQ–RCRA–2009–0640, December 

15, 2010. Accessed Online June 2012.

A White Paper on Environmental Damage from Coal ...

Sackett et al., (2010): Does proximity to coal-fired power plants influence fish tissue mercury?

Dana K. Sackett, D. Derek Aday, James A. Rice, W. Gregory Cope, and David Buchwalter. 

Ecotoxicology, Published online 17 September, 2010. Accessed Online October 2014.

Does proximity to coal-fired power plants influence fish ...

Consumers Energy (2009): Consumers Energy’s response to EPA’s Section 104(e) of CERCLA Request for 

Information Concerning Surface Impoundments, March 26, 2009. Accessed Online June 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/cec.pdf

Michigan DEQ (2009): J R Whiting Solid Waste Disposal Area Operational License (WM ID # 397664; 

License # 9224, issued August 12, 2009). Accessed October 2014.

http://www.michigan.gov/deq/0,1607,7-135-3312_4123-213281--,00.html

Spencer et al., (2009): Selenium and Mercury Interactions with Emphasis on Fish Tissue: Spencer A. 

Peterson, Nicholas V.C. Ralston, Philip D. Whanger, James E. Oldfield, and Wayne D. Mosher. 

Environmental Bioindicators, 4:318-334, 2009. Accessed Online June 2012.

http://www.environmentalindicatorsjournal.net/Journal/DisplayArticle/tabid/57/ArticleId/122/Seleniumand-Mercury-Interactions-with-Emphasis-on-Fish-Tissue.aspx

Black & Vetach (2008): Consumers Energy Company J. R. Whiting Plant. Final Cover System Report for 

Ash Ponds 3, 4, and 5. B&V Project 149386, March 2008. Accessed Online August 2014.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2012-0028-0068

EPA (2007): Coal Combustion Waste, Damage Case Assessment. U.S. Environmental Protection 

Agency, Office of Solid Waste, July 9 2007, Case # 76, Lake Erie, Ohio. Docket Number EPA-HQRCRA-2006-0796-0015. 

http://www.regulations.gov/#!searchResults;rpp=25;po=0;s=EPA-HQ-RCRA-2006-0796-0015

Michigan Background Soil Survey (2005): Hazardous Waste Technical Support Unit, Hazardous Waste 

Section Waste and Hazardous Materials Division, Michigan DEQ. Accessed Online June 2012.

http://michigan.gov/documents/deq/deq-whm-hwp-Michigan-Background-SoilrevJuly2005_248097_7.pdf
I. CCR Proven Damage Cases December 2014

49

Thomas (2003): Arsenic in Midwestern Glacial Deposits – Occurrence and Relation to Selected 

Hydrogeologic and Geochemical Factors. Mary Ann Thomas. U.S. Geological Survey Water-Resources 

Investigations Report 03-4228, 2003. Accessed Online June 2012.

http://pubs.usgs.gov/wri/wri034228/pdf/wri034228.pdf

USEPA (2002): Case Study Analysis for the Proposed Section 316(b) Phase II Existing Facilities Rule.

USEPA Report EPA-821-R-02-002; February 28, 2002, Part H: J. R. Whiting. Accessed Online October 

2014. 

http://nepis.epa.gov/Exe/ZyNET.exe/20002S0V.TXT?ZyActionD=ZyDocument&Client=EPA&Index=2

000+Thru+2005&Docs=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocE

ntry=&QField=&QFieldYear=&QFieldMonth=&QFieldDay=&IntQFieldOp=0&ExtQFieldOp=0&XmlQ

uery=&File=D%3A%5Czyfiles%5CIndex%20Data%5C00thru05%5CTxt%5C00000005%5C20002S0V.t

xt&User=ANONYMOUS&Password=anonymous&SortMethod=h%7C-

&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display=p

%7Cf&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&Ma

ximumPages=1&ZyEntry=1&SeekPage=x&ZyPURL

Hatcher et al., (1992): Hatcher, C. O., R. E. Ogawa, T.P. Poe and J. R. P. French, III. 1992. Trace 

Elements in Lake Sediment, Macrozoobenthos, and Fish Near a Coal Ash Disposal Basin, J. Freshwater 

Ecol. 7:257-269 (1992). Accessed Online June 2012. 

http://www.tandfonline.com/doi/abs/10.1080/02705060.1992.9664694#preview 

PR09. North Lansing Landfill, Lansing Board of Water & Light (LBWL),206 Lansing, 

Ingham County, Michigan

Type: Gravel Pit. 

Brief Description/Impact: The North Lansing Landfill (NLL) is a-27 acre unlined landfill located in a 

former gravel quarry pit with an elevated ground water table.207 It was licensed in 1974 for disposal of 

inert fill materials, including soil, concrete, and brick. From 1980 to 1997, the NLL was used for disposal 

of approximately 1 million cubic yards of coal ash from the Lansing Board of Water and Light electric 

and steam generating plants.

208 Onsite groundwater exceeded MCLs for lead and selenium, state standards 

for lithium, and SMCLs for manganese, boron, and sulfate.209 The site is located about 5,000 feet from the 

Grand River, and wetlands are about 1,000 feet away at Bancroft Park and Groesbeck Golf Course.210

 

206 The Lansing Board of Water and Light is a publicly owned, municipal utility (with a current electric generating 

capacity of 510 MW in two power plants, and until 1992 – in four power plants) that provides electricity and water 

to the residents of the cities of Lansing and East Lansing, Michigan, and the surrounding townships of Delta, Delhi, 

Meridian and DeWitt. LBWL also provides steam and chilled water services within the City of Lansing.

207 Based on City Pulse (2010) and Lansing Online News (2010) and Clean Water Fund (2013), there were 

additional unlined coal ash landfills located in abandoned sand and gravel pits within the City’s confines (e.g., the 

Comfort Street Site), going back at least as far as 1964, that leached metals into groundwater and necessitated the 

ash fill’s removal. According to Clean Water Fund (2013), due to the fact that these sites were never regulated 

storage areas, and because contamination is present, they are considered to be “Part 201” or Brownfield sites.

208 Erickson (154.7 MW) and Eckert (375 MW) Stations, Lansing: Clean Water Fund (ibid), Table 1.

209 A Memorandum from SAIC to Dennis Ruddy regarding Final Revised Report on Resolution of 18 Previously 

Indeterminate Candidate Damage Cases, March 5, 2003.

210 Clean Water Fund (ibid), page 28.
I. CCR Proven Damage Cases December 2014

50

This site was addressed in EPA (2007) and reported by the State of Michigan in its comment to the docket 

of the proposed CCR rule.211

The RI Report, published in May 1999 and revised in December 1999, established that there are two 

aquifers underneath the site: the highly permeable upper aquifer is not used for drinking water; the lower, 

Saginaw aquifer supplies the City of Lansing with drinking water. Groundwater mounding has immersed 

the CCRs into the upper aquifer, violating the State’s requirement for a 4-feet separation and resulting in 

exceedances of several contaminants. Based on statistical analysis and consideration of site-specific 

factors, the following seem to be conclusively linked to the NLL: lithium (concentrations above healthbased standards off-site);

212 manganese (concentrations are above non-health based-standards on-site); 

and selenium (concentrations are above health-based standards on-site). 

Other Considerations:

 Consent order and remediation order signed with state for contamination in on-site wells.

 The Michigan Department of Environmental Quality (MDEQ) administrative action for 

monitoring and assessment of on-site well contamination.

 The site is located alongside a former landfill, industrial waste disposal sites, and a Superfund site; 

these are responsible for other elevated contaminants, including volatile organics and ammonia.

Resolution: MDEQ confirmed in writing that ground water contamination had occurred at this historic 

landfill, which was constructed before current State regulations were in place. The site was eventually 

closed because the inadequate control of contamination violated current regulatory requirements.

Following detection by the hydrogeological monitoring systems required under Michigan’s Solid Waste 

Management act, a Consent Order from 1998 required the facility to institute corrective action measures, 

including a response action plan, an RI/FS to determine the extent of contamination, and the development 

of a Remedial action Plan, to address the release. A soil-bentonite slurry wall was constructed around the 

perimeter of the facility in 2008, and a gradient control system was scheduled for implementation in 

2009-10.213 

Previous Basis for Consideration: Scientific: Observation of off-site exceedances of the State's healthbased standard for lithium.

ICF (2010) Rationale: Potential Damage. <Onsite groundwater exceeds MCLs for lead and selenium 

and SMCLs for manganese, boron, and sulfate. Lithium exceeds state risk screening standard for lithium 

offsite, but complex background and potential sources suggest partial contribution from other waste 

sites.>

Postscript: ICF (2010) downgraded this case from a proven to a potential damage case; however, MI 

DNRE confirmed that this site is a proven damage case.214

References

Clean Water Fund (2013): Toxic Trash Exposed: Toxic Coal Ash Pollution in Michigan, Clean Water 

Fund, November 2013. Accessed Online August 2014.

 

211 Michigan DNRE (2010): EPA-HQ-RCRA-2009-0640-6815, Attachment 5.

212 Michigan’s clean-up standards for lithium are: 170 ppb in drinking water, and 96 ppb for the groundwater-surface 

water interface. 

213 Michigan DNRE (2010).

214 Ibid. 
I. CCR Proven Damage Cases December 2014

51

http://www.cleanwaterfund.org/files/publications/Toxic%20Trash%20Exposed%20-

%20Coal%20Ash%20Polluton%20in%20Michigan%20-%20November%202013.pdf

City Pulse (2010): Legacy of dumping: How the Lansing Board of Water and Light is making good on nearly 

15 years of careless dumping of coal burning byproducts. City Pulse, September 8, 2010. Accessed 

Online August 2014.

http://www.lansingcitypulse.com/lansing/article-4752-legacy-of-dumping.html

EPRI (2010): Evaluation of Coal Combustion Product Damage Cases, Volume 2: Case Summaries. 

1020554, EPRI Final Report, September 2010. Accessed Online June 2012.

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%20

Product%20Damage%20Cases

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #18. ICF, 10/2010.

Lansing Online News (2010): Coal Ash Removal: BWL attacks a legacy of pollution. May 3, 2010. 

Accessed Online August 2014. 

http://lansingonlinenews.com/news/coal-ash-removal-bwl-attacks-a-legacy-of-pollution/

Michigan DNRE (2010): Michigan Department of Natural Resources and Environment (DNRE) comment 

to the proposed CCR Rule’s docket: EPA-HQ-RCRA-2009-0640-6815, Attachment 5: Table of 

Michigan’s Proven Damage Cases. Accessed Online August 2014.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2009-0640-6815

EPA (2007): Coal Combustion Waste Damage Case Assessments, Case #18, docket ID EPA-HQ-RCRA2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

PR10. Colstrip Power Plant PPL215 Montana (Avista, PPL Montana LLC, Portland 

General Electric Company, PacifiCorp, NorthWestern Energy LLC, and Puget Sound 

Energy), Colstrip, Rosebud County, Montana

Type: Multiple Surface Impoundments.

Background and Description: The ‘mine mouth’ Colstrip Steam Electric Station (CSES) in Colstrip, 

Montana, is sited between two active mining areas of the Rosebud coal strip mine.216 Sub-bituminous coal 

is delivered to the power plant by a combination of hauling and conveyor systems. The second largest 

power plant west of the Mississippi, CSES has a net generating capacity of 2,094 MW. Generating Units 

1 and 2 (each with 307 MW net capacity) were commissioned in 1975, and generating Units 3 and 4 (each 

 

215 The original owner of the Colstrip Plant was Montana Power Company. Since 1999, ownership switched to a 

consortium comprising PPL Montana LLC, which operates the plant, as well as Puget Sound Energy Inc., Portland 

General Electric Company, Avista Corporation, PacifiCorp, and NorthWestern Energy LLC.

216 See Rosebud Mine (2007). According to Barkey and Polzin (2010), approximately 89 percent of the output of the 

Western Energy Company’s coal mine goes to Colstrip; the plant consumes approximately 10.1 million tons of coal 

per year.
I. CCR Proven Damage Cases December 2014

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with 740 MW net capacity) - in the mid-1980s.

217 The northwestern portion of the CSES (Stage I and II 

Evaporation Ponds, SOEP and STEP) is located in the watershed of the East Fork Armells Creek, while 

the southeastern portion of the CSES (Units 3 & 4 Effluent Holding Pond, EHP) is located in the 

watershed of the Rosebud Creek.218 Both creeks are tributaries of the Yellowstone River, which drains the 

northwestern portion of the Powder River Basin. 

The Colstrip region’s bedrock is part of the Paleocene Tongue River Member of the Fort Union 

Formation. The Tongue River Member is composed of claystone, shale, siltstone, and sandstone with 

deposits of lignite, coal, and clinker.

219 This unit generally dip less than a few degrees to the southsoutheast. At least one fault with slight displacement, exceeding 6 miles in length, is present in the 

Colstrip area.220 The bedrock is overlain by 1 to 35 feet thick clayey silt and gravel overburden (alluvium, 

colluvium, and mining spoil).221 Aquifer test results for alluvium and for Fort Union Formation aquifers 

in southeastern Montana indicate that the alluvium, sandstone and coal are all potential aquifers.222

Potentiometric maps of the key hydrostratigraphic units underlying and surrounding the Units 3 &4 EHP 

impoundments indicate that the drainage of the shallow Rosebud and alluvial units, as well as that of the 

underlying Mckay and sub-Mckay units223 is to the north, east and south.224

The CSES was designed as a Zero Liquid Discharge (ZLD) facility, by managing large volumes of storm 

water and waste water in impoundments and allowing for its evaporation or reuse within the power-

 

217 For additional information on the Plant’s history, power generation and ownership, as of May 2013, see Puget 

Sound Energy’s (PSE) Integrated Resources Plan (IRP), May 30, 2013, Appendix J, Colstrip: 

http://pse.com/aboutpse/EnergySupply/Documents/IRP_2013_AppJ.pdf.

218 For a location aerial photo map of the expansive CSES waste ponds, generation area and adjacent open-pit coal 

mines, see Fig. 1 in the Appendices volume of Hydrometrics (2013a).

219 Clinker is a baked and highly fractured shale, a product of naturally-burned coal. It is also known, when vitrified, 

as porcelanite. As the coal burned, its volume decreased resulting in collapse of the overburden into the void left by 

the burned coal, forming, in turn, a highly fractured interval of metamorphosed sedimentary rock. In the 3 & 4 EHP 

area, the hydraulic conductivity of clinker was calculated to be 2,500 feet per day. This high value reflects the 

clinker’s coarse grain size, interconnected pore space, and parallel orientation of rock fragments and gravels.

220 Roberts et al., 1999.

221 Spoil comprises silt, clay, sandstone, coal fragments, and formerly overburden units that have been used to 

backfill areas where the Rosebud Coal was mined. For a geologic cross-section of the CSES’ Main Plant area, see 

Fig. 3-1 in Hydrometrics (2012a); for geologic cross-sections of the SOEP/STEP area, see Figs. 3-1, 3-2, and 3-3 in 

Hydrometrics (2013a); and for geologic cross-sections of the 3 & 4 EHP area, see Figs. 3-1, 3-2, and 3-3 in 

Hydrometrics (2013b)

222 Wheaton and Metesh, 2002. According to Plant Site Groundwater Model Redesign and Calibration, Colstrip 

Steam Electric Station, AMEC Environment and Infrastructure, Dec. 2012 (in Hydrometrics, 2012a, Appendices), 

“hydraulic conductivity estimates for alluvial wells west of Pond A and east of East Fork Armells Creek range from 

12 to 316 feet/day. Hydraulic conductivity estimates for Sub-Mckay wells west of Pond A and east of East Fork 

Armells Creek range from 0.1 to 76 feet/day. Hydraulic conductivity estimates for spoils wells just west of the Units 

3 and 4 Bottom Ash Ponds range from 10 to 622 feet/day.” According to Section 2.2.6 in Hydrometrics (2013a), an 

assessment of lithology beneath the STEP determined that soil types range from sand to claystone. The permeability 

of undisturbed clays ranged from 5 x 10-7cm/sec to 1 x 10-4cm/sec (hydraulic conductivity of 0.0014 to 0.28 

feet/day). Native materials that were remolded or amended with bentonite exhibited permeabilities as low as 4 x 10-8

cm/sec (hydraulic conductivity of 1.13 x 10-4feet/day)

223 The McKay and sub-McKay units comprise inter-bedded claystone, siltstone, fine sandstones, and thin to thick 

coal seams. Channel sands are not uncommon.

224 Evaluation of 2010 Hydrologic Monitoring Data from Colstrip Units 1 through 4 Process Pond System CSES, 

Colstrip, Montana, Figs. 8-1, 8-2, and 8-3. Hydrometrics, Inc., Billings, Montana. The natural groundwater flow 

directions were affected by the large number of capture wells, which have formed extensive depression cones and 

shifted groundwater flow divides towards the capture-system wells. For a calibrated hydrogeological model of the 3 

& 4 EHP ponds area, see NewFields (2013).
I. CCR Proven Damage Cases December 2014

53

plant’s operations.225 The original permit (1976) for the CSES stated "that the sludge pond or ponds shall 

be completely sealed",226 but a 1983 district court decision reinterpreted the permit by stating that the 

ponds "may leak in small amounts."227 Starting in the late 1980s, once it became evident that many of the 

ponds - none of which was originally lined - were leaking, they have been either retrofitted228 or closed,229

and in 2004 the CSES switched to a low-water, paste slurry system.230, 231 

The CSES produces annually approximately 675,000 tons of mixed fly ash and FGD gypsum and 

approximately 280,000 tons of bottom ash.232 The CSES has currently 14 active ponds, 5 inactive ponds, 

and 2 ponds that are capped and/or reclaimed.233 The 160-acre Castle Rock Lake, also known as a surge 

pond, provides fresh water drawn from the Yellowstone River some 29 miles away, to the plant, coal 

mine, and the town of Colstrip.234

The impoundments are clustered in three areas: (1) the generating Units 3 & 4 EHP system is located 

about three miles southeast of the plant, in the Rosebud Creek’s watershed, at the head of the Cow Creek 

drainage. Prior to the construction of the paste plant in 2004, it received fly ash, bottom ash, boiler slag, 

FGD residuals, and mill residuals as ‘low-density’ slurry. Since 2004, the EHP has been receiving fly 

ash/FGD as ‘high-density’ slurry, in paste form. Additionally, PPL has begun to use forced evaporators to 

speed the rate at which standing water in the 3 & 4 pond is eliminated, reducing water inventory at the 3 

& 4 EHP by 500 million gallons.

(2) A second cluster of impoundments is located at the Main Plant area, on the southeast edge of the town 

of Colstrip.235 It comprises two pairs of primary ponds: (a) Generation Units 1 & 2 Bottom Ash Pond and 

(b) Units 1 & 2 Fly ash A and B Ponds. The east cell of the Units 1 & 2 Bottom Ash Pond is designated 

for temporary storage of bottom ash and boiler slag at various stages of clarification; the water remaining 

after the ash settles out is transferred to a clay-lined clearwell cell. The bottom ash and slag are ultimately 

placed in the EHP system ponds.

(3) A third cluster of impoundments is located approximately two miles northwest of the SCES and town, 

in the East Fork Armells Creek’s watershed.236 It comprises the unlined and now inactive Stage I 

 

225 Avista Corporation, comment to the proposed CCR rule’s docket: EPA-HQ-RCRA-2009-0640-6863.

226 Colstrip MFSA 3 & 4 Certificate of Compatibility (July 22, 1976).

227 1983 Olson Decision, June 29, 1983: http://deq.mt.gov/mfs/ColstripSteamElectricStation/default.mcpx

228 I.e., generating Units 1 &2 Fly Ash B Pond (established 1975; in 2004, upgraded by a 45-mil RFP double liner 

and a leachate collection system). See photos in Colstrip (2011).

229 I.e., the unlined generating Units 1 & 2 Fly Ash A Pond (closed 2005; now used as a water storm runoff storage 

pond); and the unlined Stage I Evaporation Pond (SOEP, closed 1997).

230 Parker and Criswell (2002). The scrubber slurry from the venturi scrubber has an initial percentage of solid of 

about 12% and the paste plant treats the scrubber slurry and produces a paste that is about 65% solids. According to 

GEI (2009), occasional disposal of fly ash and Flue Gas Desulfurization (FGD) slurry may occur if the paste plant is 

out of service for maintenance.

231 According to Montana DEQ (2012), since 2000, CSES spent $23.8 million to reline ponds and $64.3 million to 

address and mitigate the site’s impacts. By token of the operator’s acknowledgement of the environmental issues 

and his pursuit of proactive measures to address leakage from the ponds, DEQ refrained from imposing, under the 

Major Facility Siting Act (MFSA), the maximum daily fine of $10,000. 

232 Parker and Criswell (2002)

233 MDEQ (2010) and GEI (2009); for a comprehensive list of the CSES’ waste water process ponds, their functions 

and design, see Hydrometrics (2012a), Table 2-1. 

234 Designed originally to hold approximately 2,800 acre-feet of water.

235 For location of ponds, a summary of their properties, and data on their water quality, see Fig. 1-1, Table 2-1, and 

Table 2-2, respectively, in Hydrometrics (2012a).

236 For location of SOEP and STEP ponds, see Fig. 1-1 in Hydrometrics (2013a).
I. CCR Proven Damage Cases December 2014

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Evaporation Pond (SOEP)237 and the active Stage II Evaporation Pond (STEP),238 both the recipients of 

ash slurry from the wet scrubbers of generating Units 1 & 2. The slurry is piped five miles to the STEP 

where ash settles out, and the 'clean' water is recycled back to the plant for reuse in the scrubber. The 

STEP was established to both treat and store fly ash and FGD solids. The remaining fly ash/FGD slurry 

solidified as evaporation occurred. Since a recent completion of a paste plant at the STEP, all of the fly 

ash/FGD slurry has been disposed as paste in the STEP.239

Impact and Damage Claims: PPL indicates that “several years after the first slurry was placed into the 

stage one pond for Units 1 & 2 some of the monitoring wells began to show increases in groundwater 

constituents, such as dissolved salts, which could indicate that some of the ash constituents were 

migrating through the clay lining... In the late 1990s, pond seepage was identified off plant property for 

the first time in a shallow groundwater well at the Colstrip Moose Lodge. The MDEQ was notified, a 

meeting was held with residents and businesses near the Moose Lodge to discuss the issue, and the plant 

provided a replacement well at a much great depth.”240

Stakeholders allege, and MDEQ concedes, that both watersheds on which the CSES impoundments are 

located have been impacted.241 EIP (2010) claims that contaminated groundwater affected shallow 

groundwater in a residential area offsite where wells were used for drinking water. Particularly, four areas 

adjacent to the Stage I and Stage II evaporation ponds had extremely high average concentrations of TDS 

(14,600 mg/L to 22,700 mg/L), sulfate (10,100 mg/L to 21,700 mg/L), and boron (68.5 mg/L to 122 

mg/L). Selenium concentrations were 2 to 3 times the primary MCL (0.103 mg/L to 0.174 mg/L), and the

levels of molybdenum (0.121mg/L) exceeded the World Health Organization MCL for drinking water 

(0.07 mg/L). Groundwater monitoring data from 2008 revealed individual instances of actionable 

 

237 Operated between 1975 and 1997, the SOEP was designed to store 10 years of fly ash. Construction included a 

partial liner consisting of natural clay. With partial clay-lining, seepage was estimated between 85 and 115 gallons 

per minute (gpm), assuming a full pond, saturated conditions, limited fractures in bedrock, and steady state 

conditions (Hydrometrics, 2013a, Section 2.1.1). However, in Section 2.2, Hydrometrics (2013a) cites even a higher 

seepage rate estimate – 130 gpm - based on some simplified assumptions by Bechtel (1976). The SOEP is now 

closed and capped: the SOEP evapotranspiration cap layers vary in thickness throughout the site, consisting on 

average of 20 cm of topsoil, 50 cm of subsoil, and 26 cm of porcelanite (clinker); groundwater is present at a depth 

of about 25 to 30 feet below ground surface. 

238 STEP, constructed directly down the drainage from the SOEP, opened in 1992. It has a total surface area of 176-

acre and a total storage capacity of 4,370 acre-feet. STEP is divided into five cells. With the exception of Cell “B”, 

which (since 2006) has a double, 45 mil reinforced polyethylene (RFP) liner with leak detection and leachate 

collection systems, all the other cells have a single high density polyethylene (HDPE) liner, with a permeability of 1 

x 10-9cm/sec. The cumulative estimate of seepage from all STEP cells is approximately 21.5 gpm.

Cell A, located at the toe of the Units 1 & 2 Stage I Main Dam, is essentially full and no longer receives fly 

ash scrubber slurry. Cell E is currently the active cell. Fly ash slurry from Units 1 & 2 is routed to a paste plant that 

was constructed directly south of Cell A in 2008 and began operations in 2009. Paste from the plant is then piped to 

Cell E. Cell B was constructed in 2006 to provide additional space to store process water. In 2001, Cell B was 

equipped with pumps and converted to the New Clearwell. The Old Clearwell, located adjacent to the Units 1 & 2 

STEP Main Dam is now used for water storage and will be filled with paste. Cell D was constructed in 2011. Cell C 

is a future cell, planned for construction north of Cell E.

239 Based on a statement in GEI (2009) that the STEP paste plant was scheduled for completion in 2009.

240 PSE IRP, Appendix J (ibid).

241 Armells Creek and the Rosebud drainage: Northern Plains Resource Council, undated (2010?) letter to Tom 

Ring, MDEQ, Comment on the Administrative Order on Consent. However, in Montana DEQ (2012), the Agency 

claims that a 2010 Battelle Hydrologic/Water Quality Study concludes that in the Cow Creek and the South Fork 

Cow Creek of the Rosebud watershed, there are no definitive impacts on groundwater quality from the operation of 

the effluent-holding ponds. 
I. CCR Proven Damage Cases December 2014

55

selenium and arsenic levels (up to 0.164 mg/L and 0.013 mg/L, respectively) in town site drinking water 

wells.242

At the Plant Site ponds area, baseline levels of several key monitored constituents have all been 

exceeded;243 and in areas on the fringe of town (i.e., west of the East Fork Armells Creek) levels of 

several constituents as measured in 2011 and 2012 samplings exceed baseline data (e.g., specific 

conductivity: up to 15, 520 μmohs/cm in well OT-7; chloride, up to 351 mg/L in well OT-7; and sulfate, 

5,280 mg/L in well CA-19A). For a recent summary of the site’s groundwater quality and seepage 

volumes, see Figs. 3-2 through 3-7 in Hydrometrics (2012a). 

EIP (2010) notes one well at the Moose Lodge which was contaminated with boron above the EPA Child 

Health Advisory. The Moose Lodge well also had sulfate above EPA’s Drinking Water Advisory and 

EPA SMCL, as well as TDS above the EPA SMCL.244 EIP (2010) notes that following these findings, and 

after members of Moose Lodge had been made ill by drinking the contaminated water, the Moose Lodge 

well was replaced in 1998.

Uncontrolled seepage that has been active for a long period was observed during the assessments on the 

Units 1 & 2 downstream slope of the Bottom Ash Pond.245 Units 3 & 4 EHP Saddle Dam had seepage 

problems at various locations where springs formed in the foundation rock several hundred feet 

downstream of the EHP dam in 1999, 2004 and 2005.246 Surface seepage was first observed downstream 

of the Saddle Dam following a rise in the impoundment level in the cell adjacent to the Saddle Dam in 

December 1999. This seepage was addressed by an interception trench which routed seepage to a sump, 

from where the seepage is pumped back to the EHP. 

The surface seepage was caused by water from the EHP moving through defects in the slurry cutoff wall 

and/or clay core of the dam and following the base of the Rosebud Clinker out to the outcrop. According 

to a 1999 settlement and stability analysis, the surface cracks observed in the Saddle Dam were caused by 

hydro-consolidation of foundation materials on the upstream side of the cutoff wall due to wetting of the 

clinker and local deposits of colluvial soil, resulting in differential settlement of about 1-2 feet. As a 

precaution, the water level behind the dam has been restricted to a maximum elevation of 3,237 feet

 

242 USKH (2010).

243 At the Plant site pons area, baseline spring 2012 monitoring well data indicate that specific conductance in the 

alluvium and spoil (5,300 μmohs/cm and 5,090 μmohs/cm, respectively), shows levels higher by up to x 4.2 and x 

5.4, respectively; boron (baseline in alluvium, spoil, and bedrock of 1.3 mg/L, 1.3 mg/L, and 1.3 mg/L, 

respectively), shows levels as high as x 20, x 25, and x 27, respectively; chloride (baseline levels in alluvium and 

spoil - 213 mg/l and 73 mg/L, respectively), shows levels as high as x 2.4 and x 23.7, respectively; and sulfate 

(baseline levels in alluvium, spoil, and bedrock - 3,400 mg/L, 5,000 mg/L, and 2,310 mg/L, respectively), shows 

levels as high as x 3.9, x 4.3, and x 3.4, respectively. Most of the exceedance areas are associated with three Units 1 

& 2 pond complexes (namely, A and B Fly Ash ponds, Brine Waste Disposal Ponds D-1 through D-4, and Cooling 

Tower Blowdown Pond), that are either still underlain by a natural clay substrate or have had such a substrate during 

most of their service life. Brine Pond D-4 was removed from service in 2005 due to a leaking liner. See Figs. 3-2, 3-

5, and 3-6 in Hydrometrics (2012b), and Figs. B-5 through B-8 in Hydrometrics (2012b), Appendices.

244 This contaminant plume, attributed to the presently-closed Stage I Evaporation Pond to the northwest of the 

Town, is alleged to have affected multiple private water wells, including the well for a local Moose Lodge, 1,000 

feet away. This well had concentrations of boron at 20 mg/L, over x6 the EPA Child HA, sulfate at 6,000 mg/L, and 

TDS at 9,500 mg/L. 

245 The seepage appears to originate from an out-of-service box culvert that penetrates the east embankment near the 

crest. 

246 After the 1999 incident, the water level behind the Saddle Dam was lowered, and the seepage ceased.
I. CCR Proven Damage Cases December 2014

56

(AMSL) since December 1999. A plan was implemented to deposit paste within the EHP to control 

seepage through the saddle dam and reduce the head of ‘clear’ water standing within the EHP.247

The EHP has caused contamination far greater than expected in every direction. In 2004, a leak of 

polluted water was discovered on private property about one mile to the south.248 The CSES purchased 

the impacted property from the railroad, and terminated the long-standing grazing leases held by 

neighboring ranching families.249 Surface and groundwater contamination from the EHP also extended far 

to the west of that pond. The ranchers who own these lands filed a lawsuit in 2007.

250

 A recent 

consultants’ report states that PPL's monitoring data is insufficient or nonexistent for nitrate/nitrite, 

molybdenum, cobalt, arsenic, and cadmium.251

The Montana Department of Environmental Quality (MDEQ) 252 concedes that groundwater monitoring 

and spills indicate that the surface impoundments are out-of-compliance; and that groundwater is being 

adversely affected by the release of process water with, among others, elevated TDS and specific 

electrical conductivity, boron, selenium, and sulfate.253 Specifically, MDEQ reports that the high density 

 

247 The total pond seepage from all 14 active ponds is estimated at 60 gpm (Section 2.3, Hydrometrics, 2012a). A list 

of 1977-2005 incidents at the Plant Site area ponds that resulted in confirmed releases, that were suspected in 

causing releases, or that potentially resulted in a release but information gathered after the observation did not 

confirm a release is provided in Section 3.1, Hydrometrics 2012a. A similar list for the STEP ponds (1989-2012 

incidents) cites 12 releases (Table 3-1, Hydrometrics, 2013a), and the list for the 3 & 4 EHP pond (1987 to Sept. 

2013), cites about 150 releases (Table 3-1, Hydrometrics 2013b).

248 Earthjustice comment to the proposed CCR rule’s docket: EPA-HQ-RCRA-2009-0640-6315.

249 Clint McRae (2010) testified about lethal toxicity level threat to his cow/calf operation caused by seeps with 

8,100 ppm sulfate from the EHP. In an April 14, 2012 letter to Kendra Morrison, EPA Region 8, Mr. McRae 

reported Ponderosa Pine deaths in the vicinity of approximately 26 atomizers installed on the north side of and 

down-gradient from the 3 & 4 EHP. These atomizers spray fine droplets of seepage water into the air to enhance 

their evaporation. According to Montana DEQ (2012), PPLM’s sampling of these evaporators for particulates 

(PM10) indicated that in about 12.5% of the samples the total particulate concentration was 1.3% of the OSHA 

Permissible Exposure Limit (PEL), and the remaining samples had non-detectable concentrations; nor have heavy 

metals (including mercury) been detected.

250 The plaintiffs’ claims included damages for shallow groundwater contamination associated with livestock 

watering well PSW-4, then, by PSW-4A, its replacement, that overflew to a livestock pond (up to 4,000 mg/L 

sulfate, exceeding the recommended threshold for cattle of 2,000 mg/L; 6,000 μmhos/cm electrical conductivity, and 

2.7 mg/L boron), groundwater depletion due to capture well and trench systems employed by the power companies 

to attempt to collect the leakage from the 3 & 4 EHP, remediation, emotional distress, and punitive damages.

251 Spot US (2011).

252 MDEQ’s rebuttal to the 2007 CCW NODA, In Alleged DC NODA Comments Overview RV1 10_7_08, a draft 

EPA document based on state and industry rebuttals to Earthjustice’s alleged damage cases. However, in its 

comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0242), MDEQ retracts some of the Department’s 

earlier assertions: MDEQ states that while one private well was found to contain elevated constituents (boron, 

sulfate, and TDS) related to plant operations, none of the constituents exceeded a state or federal health-based 

drinking water standard. Claims of negative impacts to multiple private wells are unsubstantiated, as are claims that 

residents became ill after drinking water from the one specific private well. The Owner/Operator of this private well 

had stated that the well at issue was not used for drinking water in the time that it contained elevated ‘CCR 

constituents’. PPL claims (PPL comment, in USWAG’s comment to the 2007 NODA, July 30, 2008: EPA-HQRCRA-2006-0796-0468, Attachment 2, and PPL comment to the 2011 NODA docket EPA-HQ-RCRA-2011-0392-

0242) that while monitoring wells around the CCR impoundments have shown increased levels of sulfate and boron, 

no residential drinking water wells have been impacted. None of the impacts show exceedances of primary drinking 

water standards. Drinking water wells are located in deeper aquifers in which monitoring data does not indicate 

impacts from CCRs. One shallow well located just down-gradient of the Stage II pond at the Moose Lodge that was 

not used for drinking was impacted by CCR. Colstrip replaced this well with a deeper well that is not impacted.

253 Sample 06F-230, from a monitoring well located close to CSES’ Units 1 & 2, has yielded 10.8 ppm boron (EPA's 

proposed health reference level is 1.4 mg/L), 3,730 ppm sulfate, and 6,140 ppm TDS. In some of the ponds, 
I. CCR Proven Damage Cases December 2014

57

polyethylene (HDPE) lined (and underlain by native clay) Colstrip’s Stage II pond, which contains 

scrubber sludge, is leaking water at the rate of 15 gallons per minute (gpm); and that the similarly unlined 

Castle Rock cooling lake (likewise underlain by native clay), which provides storage for a 50-day supply 

of water to run the plant is leaking another 100-112 gpm.254 Because the clean water from the 

Yellowstone River in Castle Rock Lake is being contaminated by leakage from the Stage I waste pond,255

Montana’s Fish, Wildlife & Parks has issued an advisory that recommends limiting the consumption of 

certain fish from the Lake because of mercury contamination.256 In addition to contaminating 

groundwater, the high losses from the Castle Rock Lake have elevated the groundwater level downgradient, resulting in differential subsidence and structural damages in two subdivisions in town.

Evaluation against Proven Damage Criteria257

 

repeated evaporative losses of the recycled water generate boron concentrations as high as 130-140 mg/L, sulfate -

18,500 mg/L (HRL is 250 mg/L), TDS of 27,100 mg/L, and selenium - 0.057 mg/L (MCL is 0.05 mg/L). For maps 

displaying the distribution of groundwater field-conductivity, as well as concentrations of boron, sulfate, and 

chloride in several hydrogeologic units at CSES’ Plant Site area, see Hydrometrics (2012a) Appendices, Figs. 

B1through B12; for the same parameters in the SOEP and STEP area, see Hydrometrics (2013a) Appendices, Figs. 

7a to 10b; and for the distribution of groundwater’s specific conductivity, dissolved boron, and chloride in the 3 & 4 

EHP area, see Fig. 3-5 through Fig. 3-13 in Hydrometrics (2013b). Note that all Appendices are accessible at 

http://deq.mt.gov/mfs/ColstripSteamElectricStation/default.mcpx

254 PPL claims that the leakage rates for the synthetically lined Stage II pond and the Castle Rock Lake that is ‘lined 

with native clay’ are at the design specifications. However, there is a record of multiple liner failures due to 

installation that failed to account for the site’s extreme winter temperatures.

255 Alleged DC NODA Comments Overview RV1 10_7_08, a draft EPA document based on state and industry 

rebuttals to Earthjustice’s alleged damage cases.

256 Spot US (2011). In turn PPL, while conceding that while monitoring wells and one, non-drinking water well were 

impacted by pond seepage, disputes that any residential drinking water wells and the Castle Rock Lake have been 

impacted by seepage.

257 ICF (2010).

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels 

(MCLs) or other health-based standards 

measured in groundwater at sufficient 

distance from the waste management unit 

to indicate that hazardous constituents 

have migrated to the extent that they could 

cause human health concerns

 Offsite groundwater data exceeded the EPA Child Health 

Advisory for boron. 

 Waters in the CCR disposal areas exceeded the primary EPA 

MCL for selenium, but the EIP (2010) Report does not 

confirm that these “waters” are in fact groundwater. 

Criterion 2: Where a scientific study 

provides documented evidence of another 

type of damage to human health or the 

environment (e.g., ecological damage)

 None

Criterion 3: Where there has been an 

administrative ruling or court decision 

with an explicit finding of specific damage 

to human health or the environment

 Montana DEQ issued an Administrative Order on Consent 

that requires investigation and remediation of seepage of 

wastewater into groundwater and soil in a number of areas.

 A lawsuit filed by Colstrip residents claiming damages for 

groundwater contamination, subsurface subsidence, and 

remediation damages was settled in 2008 for $25 million.
I. CCR Proven Damage Cases December 2014

58

Resolution: MDEQ stated that the CSES falls short of its commitment as a Zero Liquid Discharge 

facility.258 MDEQ issued two NOVs to the plant in 1998 in response to the confirmed elevated levels of 

operation related constituents in a private well. Both of the NOVs related to MDEQ’s concerns regarding 

seepage from the plant’s impoundments, and one specifically required evaluating the cause of declining 

water quality in the one private well. MDEQ required that the CSES implement a more robust system of 

identifying and remediating seepage in the area of the plant’s impoundments. In response, the CSES 

designed and implemented seepage collection trenches, a monitoring and remediation system of over 800 

monitoring wells,259 including (as of 2008) 154 ‘pump-back’ wells that capture and re-inject 

groundwater;260 installation of a deeper replacement-well for the one private well at issue to be used as a 

non-drinking water well; the supply of city water to residences and businesses east of the Units 1 & 2 

STEP Main Dam to limit the potential exposure,261 lining, as well as composite-lining the more recently 

installed ponds with rubber-like (Hypalon) liners and with a leachate collection system,262 reduction of the 

hydraulic head above liners by induced evaporation, utilization of paste and diverted precipitation runoff,

and installation of an engineered cap during reclamation of the SOEP. 

Elevated specific conductivity as well as concentrations of total dissolved solids (TDS), sulfate, boron, 

and selenium are present in process water liquids/solids within the EHP pond. These parameters or ratios 

of parameters are used as indicators for process water impacts outside of the ponds.263 For data on the 

composition of the Bottom Ash and EHP pond waste water, see Montana DEQ (2004).264

 

258 Montana DEQ (2008). Seepage down-gradient of the EHP’s Saddle Dam alone is monitored by a system of more 

than 65 monitoring and recovery wells and trenches (An April 18, 2012 email from Judy Hanson, Administrator of 

the Permitting and Compliance Division, MDEQ, to Clint McRae, forwarded to Kendra Morrison, EPA Region 8). 

Following a slurry pipe leak, in March 2000 DEQ imposed a $3,700 fine for violation of the CWA. 

259 And committed to provide semi-annual water quality data reports, which are available as public information.

260 USKH (2010): The total estimated amount of water pumped from these wells increased from about 284 million 

gallons in 2005 to over 495 million gallons in 2008. In 2010, the number of the capture wells increased to around 

200 (Montana DEQ, 2012). A group of livestock and grain producers has recently approached Montana DNRC 

complaining that these large withdrawals (in 2012: over 566 million gallons) violate Montana’s Water Use Act: 

Testimony of Mike Scott, Sierra Club re: PSE IRP and Colstrip,

http://www.wutc.wa.gov/rms2.nsf/0/1B04F55B5422BA8C88257C00007BE42F/$file/UE120767%2BScott%2BComment.pdf. According to Plant Site Groundwater Model Redesign and Calibration, 

Colstrip Steam Electric Station, AMEC Environment and Infrastructure, Dec. 2012 (in Hydrometrics, 2012a, 

Appendices), while capture analysis indicates that the current capture system is intercepting the majority of 

groundwater impacted by process pond water, several areas of groundwater exceeding baseline levels are potentially 

not being captured.

261 Section 3.5.3, Hydrometrics (2013a).

262 Table 3-1 in Hydrometrics (2012a) lists over 100 investigative works conducted to assess instances of permit 

violation, pond water releases, and groundwater quality analyses that took place at the CSES’ Main Plant site ponds 

between 1977 and 2012. Similarly, Table 3-2 in Hydrometrics (2013a) lists over 110 investigative works conducted 

to assess instances of permit violation, pond water releases, and groundwater quality analyses that took place at the 

CSES’ SOEP and STEP pond areas, and Table 3-2 in Hydrometrics (2013b), lists investigative works conducted in 

the 3 &4 EHP area.

263 Hydrometrics (2013b), Executive Summary.

264 Very high average values are reported (page 24) for specific conductivity (average in EHP Clearwell: 16.4 

mmhos/cm), as well as (all values in mg/L) TDS (24,923), sulfate (17,573), boron (98.7), manganese (14.88), nickel 

(0.11), selenium (0.239), and vanadium (0.19). Arsenic is not reported. The specific conductivity values exceed the 

tolerance of common herbaceous crops, which range between 1.5-7.5 mmhos/cm. 
I. CCR Proven Damage Cases December 2014

59

After having discussed an AOC with the CSES since 2005,265 in February 2010 MDEQ proposed an 

AOC266 and issued it on August 3, 2012.267 The AOC268 requires investigation and remediation (subject 

to specific clean-up criteria and risk assessment findings) of seepage of wastewater into groundwater and 

soil at the main plant site, the Stage I and II ponds, the Units 3 & 4 EHP and any leaks or spills in the 

attendant pipelines between these units; financial assurance;269 a closure plan; institutional controls 

(restrictions on the use of real property that mitigates the risk posed to public health, safety, and welfare 

and the environment); and public participation throughout.270 Initial Proposed Facility Closure Plans shall 

be prepared and submitted by July 2017, and updated at least every five years, sooner if major changes or 

modifications are made to the facility. However, compliance boundaries and timeframes for compliance 

with remediation objectives were not established.271 Charging that the State’s generous compliance 

schedules, paired with multiple avenues of appeal, allow the facility owners to postpone cleaning up 

indefinitely without financial penalties, a coalition of citizen groups filed a petition asking Montana’s 

Environmental Review Board to declare that the AOC is not a valid enforcement of the Montana Water 

Quality Act and MFSA, and vacate and remand the AOC to DEQ for preparation of a lawful enforcement 

action.272

A lawsuit filed by Colstrip residents in 2003 claimed damages for groundwater contamination, subsurface 

subsidence, and remediation damages.

273 As the court stroke down some of the defendants' key motions 

 

265 EPA-HQ-RCRA-2009-0640-6315.

266 MDEQ (2010); and a link, in Spot US (2011). 

267 MEIC et al., (2012). The key documents associated with the AOC are Hydrometrics (2012a), Hydrometrics 

(2013a), and Hydrometrics (2013b), all accessible at Montana Department of Environmental Quality website: 

Colstrip Steam Electric Station Colstrip Units (1-4), 

http://deq.mt.gov/mfs/ColstripSteamElectricStation/default.mcpx. Additional information - on future monitoring and 

remediation - is under Interim Response Plans, 

http://deq.mt.gov/mfs/ColstripSteamElectricStation/interimresponseplan.mcpx 

268 EPA-HQ-RCRA-2009-0640-6315.

269 According to http://deq.mt.gov/mfs/ColstripSteamElectricStation/colstripfaq.mcpx#contamination, DEQ does not 

have bonding authority under the Major Facility Siting Act. PPL Montana, however, voluntarily agreed to post 

bonds at certain phases of the AOC process. PPL Montana’s submission of the bonds was made a requirement of the 

AOC. PPL Montana has submitted an irrevocable letter of credit for $7.5 million to ensure the continuing operation 

of current actions that are taking place to address the groundwater contamination. PPL Montana will also be 

required to submit additional bonds when remedial actions are identified and when final closure plans are approved 

under the AOC.

270 Specifically, the AOC requires PPL Montana to prepare Site Reports for the Plant Site, Stage I Evaporation Pond 

(SOEP) and Stage II Evaporation Pond (STEP), and Units 3&4 EHP areas. Minimum requirements of the AOC Site 

Reports are: Identification of releases, if any, for each area and the source of the releases; a description of the 

investigations performed to date, including a list of reports resulting from the investigations and summary of the 

findings and results from the investigations; groundwater models and results of modeling; a description of 

completed and ongoing remedial actions (including the sampling parameters and frequency of any ongoing 

monitoring), and an effectiveness assessment of the remedial actions. For each area that contains a pond, a 

description of the construction of the ponds and of pond contents through time; for each pond, an estimate of 

seepage to groundwater beneath the pond; identification of data gaps, if any; and recommendations for additional 

site characterization, if any. Links to the three reports and their appendices are provided under this module’s 

references, as Hydrometrics (2012a), Hydrometrics (2013a), and Hydrometrics (2013b).

271 In Montana DEQ (2012), DEQ states that the proposed AOC is not an administrative order being issued as the 

result of an enforcement action initiated under the Montana Water Quality Act, because the provisions of the 

Montana WQA do not expressly apply to drainage or seepage from the ponds at Colstrip [exclusions are set forth in 

Section 75-5-401 (5), MCA. Subsection (k) of that provision excludes projects reviewed under the provisions of the 

Major Facility Siting Act (MFSA)].

272 Petition filed on September 4, 2012. For details, see Inside EPA (2012) and MEIC et al., (2012). 

273 PPL claims that “due to naturally occurring ash deposits (apparently, in reference to the Rosebud Clinker), some 

of the soil in the area is susceptible to collapse when initially saturated with groundwater, such as when Castle Lake 
I. CCR Proven Damage Cases December 2014

60

seeking summary judgment and other relief on various issues, in May 2008 PPL reached a $25 million 

settlement with the plaintiffs.274 Several businesses have closed,275 and the plaintiffs have been connected 

to the municipal water system at a cost to PPL of $900,000.276

To ensure sufficient capacity of the EHP to handle the amount of ash expected over the life of the project, 

the dams will be raised and liners installed over ash deposits which, it is hoped, should help to control 

future seepage. MDEQ claims that the additional capacity afforded by the current dam raise is consistent 

with Paragraph 92 of the Certificate and the design plans developed in 1982 under the Certificate of 

Compliance and does not require a new authorization.277 The current dam raise modifies the 1982 design 

by adding a synthetic liner over ash deposits in those cells which do not already have synthetic liners and 

uses material from inside the pond to raise the dams.278

ICF (2010) Rationale: Proven damage. <The Montana DEQ proposed an Administrative Order on 

Consent which requires the investigation and remediation of releases from the Colstrip Power Plant. 

Additionally, a lawsuit filed by Colstrip residents was settled for previous damages to groundwater and 

the environment. Offsite groundwater data exceeded the EPA Child Health Advisory for boron, but not 

primary EPA MCLs. Waters in the CCR disposal areas exceeded the primary EPA MCL for selenium, but 

there is no information presented that these “waters” are in fact groundwater.>

Postscript: USWAG claims279 that this case does not meet the criteria for a damage case because the 

allegations do not contain any documented evidence of off‐site groundwater monitoring data or off‐site 

groundwater monitoring data showing exceedances of an MCL, other health‐based standard or state 

groundwater standard. However, this case qualifies as a proven damage case based on the following: 

Scientific/Human Health: Selenium concentrations were several times the primary MCL and arsenic 

levels exceeded MCL in several town site drinking water wells. Administrative: Two NOV and an AOC, 

and requirement for extensive corrective action to address massive leakage of contaminants from several 

impoundments. PPL purchased grazing ground from ranchers due to soil contamination, and provided 

water hookup/replacement wells to replace impacted residential drinking water wells. 

References:

Clint McRae (undated): Coal Ash Contaminates Big Sky Country, Clint McRae, Physicians for Social 

Responsibility Environmental Health Policy Institute website. Accessed Online March 2012.

http://www.psr.org/environment-and-health/environmental-health-policy-institute/responses/coal-ashcontaminates-big-sky-country.html

 

was filled to serve as the facility’s water reservoir and town’s drinking water supply. These 2003 claims were repeat 

claims of earlier lawsuits in the 1990s that also addressed construction methods (although the collapse potential was 

known, it was alleged that houses were not constructed with appropriate foundations, etc.).”

274 “A PPL Montana spokesman... said his company has acknowledged contamination in portions of Colstrip's 

aquifers close to the surface but not in the vicinity of deeper residential wells“ ($25 million settlement reached in 

Colstrip lawsuit, http://helenair.com/news/state-and-regional/million-settlement-reached-in-colstriplawsuit/article_d4c969b7-a6a5-5eab-9be8-8e2d8c7fa09d.html.

275 Avista (2008); US Water Use online (2008); Clint McRae (undated). 

276 Trial Court Results/Ankney v. PPL Montana: http://www.becklawyers.com/CM/Custom/VerdictsSettlements.asp. 

277 And, for that-matter, nor is pubic meeting required. An April 18, 2012 email from Judy Hanson, Administrator of 

the Permitting and Compliance Division, MDEQ, to Clint McRae, forwarded to Kendra Morrison, EPA Region 8. 

278 For a review of the effectiveness of remediation measures in the STEP and SOEP areas, data gaps, and further 

site characterization needs, see Sections 3.6, 5.0 and 6.0, respectively, in Hydrometrics (2013a).

279 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0211.
I. CCR Proven Damage Cases December 2014

61

Montana DEQ website (undated): Colstrip Steam Electric Station, with link to background documents. 

Accessed Online November 2014. http://deq.mt.gov/mfs/ColstripSteamElectricStation/default.mcpx

Hydrometrics (2013a): PPL Montana, LLC, Colstrip Steam Electric Station, Administrative Order on 

Consent Units 1 & 2 Stage I and II Evaporation Ponds Site Report, Hydrometrics, Inc., 5602 Hesper 

Road, Billings, Montana 59106, May 2013. Accessed online May 2014. 

http://deq.mt.gov/mfs/ColstripSteamElectricStation/default.mcpx

Hydrometrics (2013b): PPL Montana, LLC, Colstrip Steam Electric Station, Administrative Order on 

Consent Units 3 & 4 Effluent Holding Pond (EHP) Site Report, Hydrometrics, Inc., 5602 Hesper Road, 

Billings, Montana 59106, May 2013. Accessed online May 2014. 

http://deq.mt.gov/mfs/ColstripSteamElectricStation/default.mcpx

NewFields (2013): Numerical Groundwater Model Development and Calibration, Units 3 and 4 EHP 

Area, Colstrip Steam Electric Station, Colstrip, Montana. NewFields Companies, LLC, 1120 Cedar Street 

Missoula, Montana, October 2013. Accessed Online May 2014.

http://deq.mt.gov/mfs/ColstripSteamElectricStation/default.mcpx

Hydrometrics (2012a): PPL Montana, LLC, Colstrip Steam Electric Station, Administrative Order on 

Consent Plant Site Report, Hydrometrics, Inc., 5602 Hesper Road, Billings, Montana 59106, December 

2012. Accessed online May 2014. 

http://deq.mt.gov/mfs/ColstripSteamElectricStation/default.mcpx

Hydrometrics (2012b): Evaluation of 2011 Hydrologic Monitoring Data from Colstrip Units 1 through 4 

Process Pond System, Colstrip Steam Electric Station, Colstrip, Montana. Prepared for PPL Montana, 

LLC, by Hydrometrics, Inc., June 2012. 

Inside EPA (2012): Activists Say Montana Coal Ash Suit Highlights Need for EPA Oversight. September 

7, 2012. Accessed Online September 2012. 

http://insideepa.com/201209072409498/EPA-Daily-News/Daily-News/activists-say-montana-coal-ashsuit-highlights-need-for-epa-oversight/menu-id-95.html?s=dn

MEIC et al., (2012): Affidavit of Montana Environmental Information Center, Sierra Club, and National 

Wildlife Federation before the Board of Environmental Review of the State of Montana, in the Matter of 

Administrative Order on Consent Regarding Impacts Related to Wastewater Facilities Comprising the 

Closed-Loop System at Colstrip Stem (Stet) Electric Station, Colstrip, Montana, submitted by Jenny K. 

Harbine, Earthjustice, Bozeman, Montana, September 4, 2012. Accessed Online September 2012.

http://insideepa.com/iwpfile.html?file=sep2012%2Fepa2012_1691.pdf

Montana DEQ (2012): DEQ’s Responses to Comments Received for the Proposed AOC for Colstrip 

Units 1, 2, 3, and 4 (April 19, 2012, a letter from MDEQ to Kendra Morrison, EPA Region 8).

Battelle (2011): 2010 Hydrological Water Quality Study of Cow and Pony Creek Drainages, Rosebud 

County, Montana. CJ Thompson, KB Olsen, PD Thorne, PJ Chamberlain, SR Jennings, and PS Blicker,

Battelle Pacific Northwest Division, PNWD-4261. Prepared for PPL Montana LLC, Billings, Montana, 

May 2011. Executive-Summary on pages 13-15, in the Montana Board of Environmental Review’s July 

22, 2011 Teleconference package. Accessed Online March 2012.

http://deq.mt.gov/ber/2011Agendas/072211Packet.pdf
I. CCR Proven Damage Cases December 2014

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Colstrip (2011): Colstrip Public Meeting, 11/7/2011. Accessed Online March 2012. 

http://www.pplmontana.com/NR/rdonlyres/4285C85E-8ABC-4211-8322-

BE2C2CF0D524/0/Environmental_ColstripPublicMeeting_Nov2011.pdf

Northern Plains (2011): Northern plains members and rancher testifies about effects of leaking coal ash 

ponds. Northern Plains Resource Council, December 6, 2011. Accessed Online July 2012. Accessed 

Online July 2012. http://www.northernplains.org/northern-plains-member-and-rancher-testifies-abouteffects-of-leaking-coal-ash-ponds/

Spot US (2011): The Power of Coal: Why People in Colstrip, MT Can’t Drink the Water. Accessed 

Online July 2012. http://spot.us/pitches/697-the-power-of-coal-why-people-in-colstrip-mt-can-t-drinkthe-water/story, Dec. 1, 2011. 

Barkey and Polzin (2010): The Economic Contribution of Colstrip Steam Electric Station Units 1-4, Final 

Report Prepared for: The Colstrip Steam Electric Station Owners, Patrick M. Barkey and Paul E. Polzin, 

November 2010. Accessed Online March 2012.

http://www.colstripeconomicreport.com/NR/rdonlyres/C8C0D431-61E2-4E30-89B6-

2E04ADF13C47/0/TheEconomicContributionofColstripSteamElectricStationUnits14.pdf

Clint McRae (2010): USEPA Office of Resource Conservation and Recovery, Office of Solid Waste and 

Emergency Response, Transcript of Public hearing on EPA's proposed rule on hazardous and solid waste 

management system; identification and listing of special wastes; disposal of coal combustion residuals 

from electric utilities. Denver, Colorado. September 2, 2010, pages 177-180. Accessed Online March 

2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/transcripts/transcript-denver-co.pdf

Earthjustice (2010): Coal Ash Disposal and Reuse in Montana. Accessed Online July 2012. 

http://earthjustice.org/sites/default/files/mt-coal-ash-factsheet.pdf

EIP (2010): Out of Control: Mounting Damages from Coal Ash Waste Sites, Thirty-one New Damage 

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #10. The 

Environmental Integrity Project and EarthJustice. February 24, 2010. Accessed Online September 2013.

http://www.environmentalintegrity.org/news_reports/news_02_24_10.php

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix B, Case #10. ICF, 10/2010.

MDEQ (2010): Montana Department of Environmental Quality (DEQ), Colstrip Steam Electric Station, 

Final Administrative Order on Consent (August 2012). Accessed Online September 2012. 

http://www.deq.mt.gov/mfs/ColstripSteamElectricStation/default.mcpx. 

USKH (2010): Research Observations and Comments for Administrative Order on Consent Regarding 

Impacts Related to Wastewater Facilities Comprising the Closed-Loop System at Colstrip Steam Electric 

Station, Colstrip, Montana. USKH, April 8, 2010. Accessed Online March 2012. 

http://meic.org/energy/power_plants/colstrip/Final%20USKH%20Report%20-

%20AOC%20for%20Colstrip.pdf

GEI (2009): Coal Ash Impoundment-Specific Site Assessment Report, PPL Montana: Colstrip Power 

Plant. GEI Consultants, September 2009. Accessed Online July 2012. 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/ppl-colstrip-final.pdf
I. CCR Proven Damage Cases December 2014

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Avista (2008): Avista Corporation request for deferral of Colstrip Lawsuit Settlement Payment, 

5/21/2008. Accessed Online July 2012. 

http://www.puc.idaho.gov/internet/cases/elec/AVU/AVUE0803/20080522APPLICATION.PDF

Montana DEQ (2008): Report to the Montana Environmental Quality Council, Environmental 

Enforcement and Compliance, FY 2006-FY 2007, April 30, 2008. Accessed Online July 2012. 

http://deq.mt.gov/enf/Reports/EQC/EQC_FY06_07.pdf

US Water Use online (2008): $25 Million settlement reached in Colstrip lawsuit. Accessed Online July 

2012. http://www.uswaternews.com/archives/arcrights/8millsett5.html 

Rosebud Mine (2007): Rosebud Mine, Western Energy Company, a Westmorland Mining LLC 

Company, Tour fact Sheet – 2007. Accessed Online March 2012.

http://leg.mt.gov/content/committees/interim/2007_2008/energy_telecom/meeting_documents/ETICWest

ernEnergypresent.pdf

Montana DEQ (2004): A Request to Use PPL Montana Units 1&2 and 3&4 Bottom Ash for On and OffSite Construction Projects. Draft Environmental A, Montana DEQ, Environmental Management Bureau, 

July 22, 2004. Accessed Online November 2013.

http://www.docstoc.com/docs/1055329/Colstrip-Bottom-Ash-Amendment---Major-Facility-Siting

Parker and Criswell (2002): Colstrip Steam Electric Station Coal Combustion By-Product Disposal.

James M Parker and Gordon D Criswell, pages 115-122 in Proceedings of Coal Combustion By-Products 

and Western Coal Mines: A Technical Interactive Forum, Golden, Colorado, April 16-18, 2002. Accessed 

Online July 2012.

http://www.mcrcc.osmre.gov/MCR/Resources/ccb/PDF/CCB_and_Western_Coal_Mines.pdf

Wheaton and Metesh (2002): Potential Ground-Water Drawdown and Recovery from Coalbed Methane 

Development in the Powder River Basin, Montana, Project Completion Report to the U. S. Bureau of 

Land Management, Open-File Report MBMG 458. John Wheaton and John Metesh, Montana Bureau of 

Mines and Geology, Montana Tech of the University of Montana, May, 2002. Accessed Online March 

2012.

http://www.blm.gov/pgdata/etc/medialib/blm/mt/field_offices/miles_city/og_eis/techdocs.Par.26011.File.

tmp/CBM3DGWReport.pdf

Roberts et al (1999): Colstrip Coalfield, Powder River Basin, Montana: Geology, Coal Quality, and Coal 

Resources; S. B. Roberts et al, in U.S. Geological Survey Professional Paper 1625-a, 1999. Accessed 

Online March 2012.

http://pubs.usgs.gov/pp/p1625a/Chapters/PC.pdf

Colstrip 3 & 4 Certificate (1976): The Montana Power Company “Agreement to Comply” letter, 

submitted to Montana Department of Natural Resources and Conservation, August 25, 1976. Accessed 

Online March 2012.

http://deq.mt.gov/MFS/ColstripSteamElectricStation/Colstrip/AgreementToComplyCertificateColstrip%2

03&4.pdf
I. CCR Proven Damage Cases December 2014

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PR11. Reid Gardner Generating Facility, Nevada Energy, Moapa, Clark County, Nevada

Type: Surface Impoundments (settling and evaporation ponds) and Fugitive Dust.

Background and Description: The Reid Gardner Station (RGS) is a four-generation unit, 557 MW 

nominal combined capacity facility located on 480 acres in Moapa Valley, Nevada.280 It is located on 

private property bordering on BLM land (the Navajo Mine) and about half-a-mile from the Moapa Paiute 

Indian Reservation. There are three surface impoundments, five evaporation ponds, and a 91-acre, unlined 

onsite permitted solid waste disposal landfill for coal ash, solids cleaned from the ash water settling and 

evaporation ponds, and various other facility wastes. The RGS became commercially operational in 1965 

and the evaporation ponds were constructed in 1976 for treatment of scrubber blow down wastewater 

with the addition of SO2 scrubbers on Units 1, 2, and 3. The RGS obtains its water supply from a 

combination of offsite groundwater wells and offsite surface water withdrawals from the Muddy River.

Fly ash and flue gas desulfurization waste produced at the site is sluiced into one of three, originally 

unlined settling ponds. Subsequently, the impoundments were either closed or had double liners installed 

in accordance with a closure plan. The decanted wastewater is then discharged directly to one of five 

active, and originally unlined evaporation ponds (Ponds B-1 and B-2 are currently out of service for 

relining) for final wastewater disposal. The operation is designed to be a closed, zero-discharge system 

for recycling of the cooling water. Groundwater has been evaluated onsite and offsite. 

Impact and Damage Claims: EIP (2010) indicates that arsenic exceeded the primary EPA MCL in 

offsite groundwater, and levels of arsenic, chromium, nitrate, and selenium exceeded primary EPA MCLs 

in onsite groundwater. 

Groundwater contamination from coal ash surface impoundments at the RGS has exceeded Nevada action 

levels and drinking water standards often by many times. The groundwater monitoring first quarter 2007 

report shows that the arsenic action level (0.16 mg/L) was exceeded in 14 wells (up to a maximum of 0.73 

mg/L), and selenium’s action level (0.05 mg/L) was exceeded in 12 wells (up to a maximum of 0.150 

mg/L). Nitrate levels of 13 mg/L exceeded the federal primary MCL of 10 mg/L. Chromium levels of 110 

μg/L exceeded the federal primary MCL of 100 μg/L. The state has documented off-site contamination in 

Hogan Wash, and properties to the north, east, and south of the RGS: arsenic as high as 0.31 mg/L (x31 

the federal MCL) was detected in IWM-16S, an off-site well. The hydrologic connection between the 

shallow groundwater aquifer and the Muddy River causes contamination of the River downstream of the 

RGS, including excessive TDS, arsenic, aluminum, barium, boron, chloride, iron, magnesium, 

manganese, molybdenum, and sulfate.281

The second quarter 2011 groundwater monitoring and corrective action report indicates continued 

exceedances of arsenic, selenium, and several SMCLs.282 Environmental Contaminants identified at the 

 

280 Units 1-3, of 100 MW generating capacity each, are owned by Nevada Energy and came online between 1965 

and 1976; Unit 4, of 257 MW nominal generating capacity, came online in 1983 and is owned jointly by Nevada 

Energy and the California Department of Water Resources. Nevada Energy operates the whole facility.

According to NV Energy presents plan to close coal-fired plant: http://www.power-eng.com/articles/2013/04/nvenergy-presents-plan-to-close-coal-fired-plants.html, On April 3, 2013, NV Energy presented a plan to Nevada 

lawmakers, which concludes that closing Reid Gardner could cost ratepayers nearly 4 percent more over the next 20 

years. NV Energy officials said the closures, which have been requested by the Moapa Paiute Tribe, U.S. Senate 

Majority Leader Harry Reid and others, would involve closing of three of the four units of the Plant (Units 1-3) by 

the end of 2014, with the fourth unit (Unit 4) remaining operational until 2017.

281 NOV and Intention to Sue (2013).

282 NDEP (2011).
I. CCR Proven Damage Cases December 2014

65

facility include, but are not limited to, elevated concentrations of total dissolved solids (TDS), sulfate, 

chloride, dissolved metals, volatile organic compounds (VOCs), and petroleum hydrocarbons. Releases of 

Environmental Contaminants from the station onto adjacent property occur in areas of Hogan Wash, 

property north of Pond 4A, property east of the power generation units, property north and east of waste 

management unit-4 (WMU-4 Mesa Landfill), and property south of WMU-4.283

According to NOV and Intention to Sue (2013), examination of only a portion of the monitoring well data 

reveals over 7,000 exceedances reported to the Nevada Division of Environmental Protection between 

2008 and 2012, including chloride, sulfate, TDS, arsenic, boron, chromium, manganese, magnesium, 

molybdenum, selenium, and sodium.284 Furthermore, by employing reporting limits that routinely exceed 

state-set action levels for at least arsenic, boron, manganese, molybdenum, selenium, and sulfate, 

groundwater-monitoring reports submitted by NV Energy to the Nevada Division of Environmental 

Protection for the RGS systematically under-report the number of exceedances of state-set action levels 

for constituents deemed by the State as COCs. 

According to NOV and Intention to Sue (2013), the generous application of water to control fugitive dust 

in the unlined landfill285 results in the formation of significant leachate. Groundwater monitoring wells 

that are up-gradient from the wastewater ponds but down-gradient from the landfill detect contamination 

only from the landfill.286

Fugitive Dust impact on the Moapa Paiute Band has been an unresolved issue for many years287 and one 

of the key drivers behind a recently submitted lawsuit against State authorities.

288

Evaluation against Proven Damage Criteria289

 

283 For a comprehensive record of alleged violations, see NOV and Intention to Sue (2013).

284 The following concentrations have been reported recently in monitoring wells adjacent to the wastewater ponds: 

arsenic: up to 1.4 mg/L (about nine times higher than the state action level and 140 times the federal SDWA 

standard); boron: up to 820 mg/L (585 times higher than the state action level standard).

The following concentrations have been reported recently in monitoring wells adjacent to the landfill: 

chromium: 0.11 mg/L (approximately 2.2 times the federal drinking water MCL).

The following concentrations have been reported recently in monitoring wells with no reference to a 

particular waste unit(s): manganese: 7.8 mg/L (approximately 29 times the state action level standard); 

molybdenum: 18.0 mg/L (600 times the state action level); selenium: 3.5 mg/L (70 times the state action level and 

350 times the federal drinking water MCL); sulfate: up to 100,000 mg/L (103 times the state action level and 440 

times the federal drinking water MCL); and TDS: 208,000 mg/L (81 times the state action level and 416 times the 

federal drinking water MCL).

285 Over 20 million gallons per year.

286 For instance, wells LMW-2, LMW-4R, LMW-3, LMW-5R, LMW-6R, LMW-8R, KMW-12, and KMW-16, all 

show levels of groundwater quality parameters that substantially exceed state-action level concentrations for boron, 

molybdenum, sodium, sulfate, TDS, and/or vanadium. 

287 EarthJustice (2012).

288 Las Vegas Review-Journal (2011): The lawsuit targets the Southern Nevada Health District and its board of 

directors, which signed off in September 2011 on a final permit clearing Nevada Energy to expand. 

289 ICF (2010).

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels 

(MCLs) or other health-based standards 

measured in groundwater at sufficient 

 Onsite groundwater data exceeded primary EPA MCLs for 

arsenic, chromium, nitrate, and selenium.

 Offsite groundwater data exceeded the primary EPA MCL 

for arsenic.
I. CCR Proven Damage Cases December 2014

66

Resolution: In 1997, NDEP issued an Administrative Order of Consent (AOC) requiring the Power 

Plant to halt the migration of contaminants into groundwater. Nevada Energy developed a plan to close or 

install double liners for all the site‘s surface impoundments by 2010. As of September 2010, three 

impoundments have been closed and eight have installed liners, thus completing the requirements of the 

1997 AOC.

Nevada Energy and the NDEP entered into an AOC for the Site in February 2008. The AOC calls for 

Nevada Energy to continue with environmental contaminant characterization activities and for the 

identification of corrective actions and/or clean-up measures for the soil and groundwater at the Site. 

Additionally, the AOC calls for the implementation and long-term operation and maintenance of NDEPapproved clean-up measures for the Site.290, 291

The recently issued discharge permit (NEV91022)292 allows discharge to: eight existing on-site doublelined evaporation ponds equipped with a leak detection/collection system (Ponds F, B-1, B-2, B-3, C-1, 

C-2, E-1and E-2), and eventually, to nine, yet-to-be constructed double-lined evaporation ponds in the 

Mesa area (Ponds M-1 through M-9),293 to meet Nevada standards of performance for zero-discharge 

facilities.294 No discharge is allowed to surface water, specifically the Muddy River. To ensure that water 

quality is not degraded, RGS is required to monitor both groundwater and the Muddy River for a suite of 

parameters.

On February 8, 2013, citizen groups filed an intent to sue against the RGS owners for their contribution to 

the endangerment of health or the environment, seeking injunctive relief, statutory penalties and more due 

to GRS’ waste management practices, which caused groundwater and surface water contamination at 

levels that exceed state and federal standards that are set to protect human health and water quality.295

 

290 NDEP (2008).

291 NV Energy Reid Gardner Generating Station (2010).

292 Nevada Division of Environmental Protection Authorization to Discharge, NV Energy, Reid Gardner Station 

(June 24, 2010). The Authorization was immediately challenged in court by citizens groups.

293 All of the currently active ponds are individually lined with two geomembrane liners, a 60-mil HDPE primary 

liner and 40-mil HDPE secondary liner with an interstitial leak detection and collection system. All of the proposed 

Mesa ponds will be individually lined with two geomembrane liners, an 80-mil HDPE primary liner and a 60-mil 

HDPE secondary liner with an interstitial leak detection and collection system.

294 NDEP Authorization to Discharge (2010).

295 NOV and Intention to Sue, ibid.

distance from the waste management unit to 

indicate that hazardous constituents have 

migrated to the extent that they could cause 

human health concerns

Criterion 2: Where a scientific study 

provides documented evidence of another 

type of damage to human health or the 

environment (e.g., ecological damage)

 None

Criterion 3: Where there has been an 

administrative ruling or court decision with 

an explicit finding of specific damage to 

human health or the environment

 In 1997, the NDEP issued an Administrative Order of 

Consent to repair, line, or replace evaporation ponds 

impacting groundwater. Corrective actions have been 

completed and approved by NDEP. 
I. CCR Proven Damage Cases December 2014

67

On August 8, 2013, The Sierra Club and the Moapa Band of Paiute Indians filed a citizen suit in federal 

court against Nevada Energy, seeking cleanup of contaminated lands and waters surrounding the Reid 

Gardner plant. The lawsuit also names as a defendant the California Department of Water Resources, 

which co-owns one of the Reid Gardner generating units.296 The plaintiffs want NV Energy to conduct the 

cleanup efforts adjacent to the tribal reservation. 

The Sierra Club said the tribe has concerns about air pollution and coal ash dust contamination from the 

plant. The citizen lawsuit said groundwater and surface water contamination levels downstream from 

Reid Gardner have contaminant levels that exceed safe limits established under state and federal laws. 

The lawsuit claims the power plant has violated RCRA and CWA, and it seeks proper removal and 

disposal of toxic soils, sludge, coal dust, and contaminated groundwater. The action comes after Nevada

Gov. Brian Sandoval signed legislation (S.B. 123) on June 11, 2013, putting the Reid Gardner plant on a 

path toward closure by 2017.297

Fugitive Dust: On September 26, 2012, EPA Region 9 conducted a site visit to Reid Gardner to address 

fugitive dust and odor complaints. The findings indicated that Nevada Energy has put in place work 

practices in the recent two years to address both the odor and fugitive dust issues associated with the 

Plant’s operations and no enforcement deemed necessary.298

ICF (2010) Rationale: Proven damage. <Offsite groundwater exceeded the primary EPA MCL for 

arsenic, and onsite groundwater exceeded the primary EPA MCL for arsenic, chromium, nitrate, and 

selenium. The NDEP issued an Administrative Order of Consent to repair and update evaporation ponds 

to prevent groundwater impact but with no explicit finding of specific damages.>

References

BNA (2013) Daily Environmental Report, August 13, 2013. Moapa Band of Paiute Indians v. Nevada

Power Co., D. Nev., No. 2:13-cv-01417, 8/8/13. Accessed Online November 2014.

http://content.sierraclub.org/coal/sites/content.sierraclub.org.coal/files/docs/Doc%2301%20Complaint%2

08-8-13_0.pdf

NOV and Intention to Sue (2013): Notice of Violation and Intention to Sue Pursuant to U.S.C. § 6972 and 

33 U.S.C. § 1365; the Moapa Band of Paiute Indians and the Sierra Club, submitted by the Law Offices 

of Charles M. Tebbutt, P.C., Eugene, Oregon, to NV Energy and the California Department of Water 

Resources, February 8, 2013. EPA Correspondence Management Control Number AX-13-000-2093; File 

 

296 BNA (2013). The suit states that NV Energy reported “over 7,000 exceedances of state action levels for 

contaminants of concern” to the Nevada Division of Environmental Protection since 2008, covering several 

pollutants including chloride, sulfate, total dissolved solids, arsenic, boron, chromium, manganese, magnesium, 

molybdenum, selenium, and sodium. “Groundwater monitoring data also indicates that, in the period 2008-2012, 

there were additional exceedances of federal standards for toxic contaminants beyond those identified as 

exceedances of the less restrictive state action levels.” 

http://content.sierraclub.org/coal/sites/content.sierraclub.org.coal/files/docs/Doc%2301%20Complaint%208-8-

13_0.pdf

297 The new law represents a major overhaul of the state's energy policy, effectively removing Nevada from the coalfired electricity generation business (109 DEN A-14, 6/6/13). The new law directs NV Energy to eliminate 800 

megawatts of coal-fired generation from its portfolio by December 31, 2019. The law also mandates development of 

350 megawatts of renewable energy and requires NV Energy to build or acquire a 550-MW power plant.

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=31932272&vname=dennotallissues&jd=a0d9e1q0z1

&split=0

298 Based on a recent feedback from J. Schofield, EPA R9, E-mail to A. Livnat, EPA/OSWER, Nov. 12, 2013).
I. CCR Proven Damage Cases December 2014

68

Code 401_127_a General Correspondence Files Record copy (E-mail attachment from P. Raack to A. 

Livnat, EPA/OSWER, April 29, 2013).

EarthJustice (2012): EarthJustice’s video: An Ill Wind. Accessed Online June 2012.

http://earthjustice.org/features/campaigns/an-ill-wind-blows

Las Vegas Review-Journal (2011): Lawsuit aims to block expansion of NV Energy landfill. Las Vegas 

Review-Journal, October 10, 2011. Accessed Online June 2012. http://www.lvrj.com/news/lawsuit-aimsto-block-expansion-of-nv-energy-landfill-131491113.html

NDEP (2011): Nevada Division of Environmental Protection, Bureau of Corrective Actions: Nevada 

Energy – Reid Gardner Power Station, 11/9/2011. Accessed Online June 2012.

http://ndep.nv.gov/bca/reid_gardner.htm

EIP (2010): Out of Control: Mounting Damages from Coal Ash Waste Sites, Thirty-one New Damage 

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #18. Environmental 

Integrity Project and Earthjustice. February 24, 2010. Accessed Online September 2013.

http://www.environmentalintegrity.org/news_reports/news_02_24_10.php

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix B, Case #18. ICF, 10/2010. 

NDEP (2010): Notice of Decision, Permit Number Nev91022, NV Energy, Inc. Reid Gardner Station,

June 24, 2010. Accessed Online June 2012. http://ndep.nv.gov/docs_10/nod_nev91022_p10.pdf 

NDEP Authorization to Discharge (2010): Nevada Division of Environmental Protection, Authorization 

to Discharge, Permit No. NEV91022, June 24, 2010. Accessed Online June 2012.

http://www.sec.nv.gov/appeal_docs/permit_nev91022.pdf

NV Energy Reid Gardner Generating Station (2010): Fact Sheet, Vo. 1, Issue 1, September 2010. 

Accessed Online June 2012.

http://ndep.nv.gov/BCA/file/reid_gardner2010_fact_sheet.pdf

NDEP (2008): Nevada Division of Environmental Protection, 2008, Reid Gardner Station Closure Plan. 

Accessed Online June 2012. http://ndep.nv.gov/BCA/file/reid_final_closure_plan.pdf

PR12. Cayuga Coal Ash Disposal Landfill - AES, Lansing, Tompkins County, New York

Type: Landfills and CCR Leachate Pond.

Background and Description: The Cayuga Coal Ash Disposal Landfill serves the two-unit, 305-MW 

generating capacity Cayuga Generation Power Plant.299 The plant is located about 15 miles northwest of 

 

299 Previously, New York State Electric and Gas’ Milliken Station. Generation Units No. 1 and 2 were 

commissioned in 1955 and 1958, respectively. The plant uses annually around 900,000 tons of rail-delivered, 

Northern Appalachian bituminous coal each year (Peter and Maher, 2008). Lately, AES Eastern Energy went 

bankrupt and didn’t sell electricity from March to November 2012 because natural-gas fired plants were 

undercutting its prices. The power plant was bought by Upstate New York Power Producers and its name was 

changed to Cayuga Power Plant. Since June 2012, it has been operated by Cayuga Operating Company, LLC. On 

July 20, 2012, the new owner requested the NY State Public Service Commission to mothball the Plant; after this 
I. CCR Proven Damage Cases December 2014

69

Ithaca, New York, on the down-slope of a ridge which is bordered on the west by the deep, glacially 

gouged valley presently occupied by Cayuga Lake.

The landfill consists of two sections, Phase I (16.5 acre) and Phase II (50 acre). The Phase I landfill, 

inactive since the early 1980s, is unlined. It had a series of pipes to suppress groundwater level and 

collect leachate in a pond, which was then discharged to Cayuga Lake. The Phase II, currently active 

landfill, is lined with a composite liner (soil and a synthetic liner) with leachate collection and leak 

detection systems. The waste includes fly ash, FGD byproducts, pyrites and other wastes from AES 

Cayuga Plant, and smaller amount of fly ash from a Cornell University, Ithaca heating plant.

The site geology comprises a thick sequence of shale and siltstone bedrock with thin limestone interbeds 

of Middle to Late Devonian age, overlain by a veneer of unconsolidated, glacially-derived Pleistocene till. 

The glacial till consists of gravel, sand, silt and clay. Groundwater flow occurs in both overburden and 

bedrock. Bedrock groundwater movement is controlled by horizontal fractures along bedding plane 

partings, and vertical fractures characterizing the regional bedrock fracture set. The dominant 

groundwater flow direction in bedrock and glacial overburden is to the west-southwest, toward Cayuga 

Lake.

Cayuga Lake, one of New York’s Finger Lakes, a major destination for fishing and water recreation,300

receives discharge from the CCR leachate pond via Outfall 013.301 In 2008, the Plant disposed of 108,330 

tons of fly ash at the landfill and discharged 19 million gallons of CCR leachate pond water from Outfall 

013. Groundwater has been monitored onsite as early as 2000. Additionally, groundwater has been 

monitored offsite in a former private residential well, since acquired by AES. Although discharge to 

Cayuga Lake has been evaluated, the lake’s water quality itself has not. 

AES Cayuga maintains a network of 35 groundwater monitoring wells at various depths and locations 

around its CCR landfill. EIP (2010a) claims that despite the general groundwater flow towards Cayuga 

Lake, there are several wells labeled “up-gradient” that appear to be influenced by the landfill as a result 

of groundwater mounding.302 

Impact and Damage Claims: EIP (2010a) indicates that levels of arsenic, cadmium, and selenium 

exceeding primary EPA Maximum Contaminant Levels (MCLs) were detected in onsite groundwater. 

Additionally, aluminum, manganese, sulfate, and total dissolved solids (TDS) exceeded secondary EPA 

MCLs (SMCLs); arsenic and selenium exceeded New York groundwater standards; and aluminum, 

arsenic, boron, cadmium, manganese, selenium, sulfate, and TDS exceeded federal groundwater 

standards. Furthermore, EIP (2010a) indicates that levels of iron, lead, manganese, selenium, and TDS 

 

request was rejected due to power supply reliability concerns, the owner/operator has considered retrofitting the 

plant to fueling with natural gas, to be supplied by a new natural gas pipe (Politics on the Hudson, 2012; Ithaca 

Journal, 2013; and Ithaca Times, 2013).

300 NYDEC (2009): Cayuga Lake in the area of the Power Station is designated a class AA(T) water. The best usage 

of Class AA waters are: a source of water supply for drinking, culinary or food processing purposes; primary and 

secondary contact recreation; and fishing. The waters shall be suitable for fish (including trout), shellfish, and 

wildlife propagation and survival. The lake is well noted for fine trout and salmon fishing. 

301 Under SPDES permit NY-000-1333.

302 According to EIP (2010a), an assessment by USGS of naturally occurring and anthropogenic arsenic in 

groundwater did not identify any locations in the state of New York with naturally high background levels or areas 

with arsenic in groundwater associated with the use, production, or disposal of arsenical pesticides. Furthermore, 

the locations of these “up-gradient” monitoring wells are either adjacent to, or within 150 feet of, the edge of the 

landfill (most are within 50 feet of the landfill) and likely influenced by groundwater flow direction reversals related 

to mounding. New York State Regulators have questioned whether some wells, such as MAGUXX-7712, are truly 

“up-gradient” from the landfill. 
I. CCR Proven Damage Cases December 2014

70

exceeded state and/or federal groundwater standards303 in a well (MAGDWS-XXO1) located downgradient, southwest and offsite of the landfill, which was acquired by AES and is now under their 

ownership. 

EIP (2010a) also indicates that discharge water via Outfall 013 to Cayuga Lake exceeded federal water 

quality criteria. Specifically, arsenic exceeded the standard for protection of human health from surface 

water ingestion and fish consumption, cadmium exceeded the acute toxicity standard for aquatic life, and 

selenium exceeded the chronic toxicity standard for aquatic life. However, the SPDES permit for Outfall 

013 does not have limits for these parameters, and Cayuga Lake is not monitored for possible water 

quality standard violations resulting from these discharges. It is important to note, however, that these 

exceedances are in the discharge water and do not account for dilution in Cayuga Lake.304

Recent monitoring results associated with the CCR landfill on site305 from numerous groundwater 

monitoring wells installed downslope of the landfill revealed sulfates, barium, selenium, boron, ammonia, 

and sodium at levels above potable water standards for groundwater. In addition, according to AMEC’s 

November 12, 2010 report, leachate from an on-site retention pond was found to be leaking into the soil 

adjacent to and underneath the pond. While this leak was repaired in 2010, the report indicated that the 

adjacent groundwater monitoring well test results during 2009 and 2010 included calcium, potassium, 

magnesium, sodium, sulfate and TDS “outside of historical ranges.” The report suggests that these 

elevated measures may persist. Additionally, at two surface water sediment sampling points along a 

stream which discharges to Cayuga Lake downslope of and to the south of the landfill, 2010 test results 

by AMEC indicated elevated levels of chromium and zinc.306

Resolution: NYSDEC issued a Notice of Violation (NOV) on February 2, 2009 in response to the 

facility’s permit violations for volume of coal ash disposed. Cayuga has submitted to the NYSDEC a 

landfill Liner Demonstration Report, establishing that the landfill has adequate engineering integrity to 

support the additional coal ash and there is no inherent environmental threat. On May 14, 2010, NYSDEC 

accepted these findings and approved a permit modification, which allows for the closure of this 10-acre 

portion of the landfill. The construction, in accordance with the approved permit modification, was 

completed in November 2010, and the certification report for this construction project was to be 

submitted to the NYSDEC in the second quarter of 2011.307

Although there are several homes and farms with drinking water wells within 0.03-0.1 miles from the 

landfill and many homes along the lake, the State has not undertaken testing of nearby residential wells or 

sampling of the Cayuga Lake for impacts from the CCR leachate pond. It has taken no enforcement action 

over water pollution at this site or required AES to take corrective actions, limit its discharge to Cayuga 

Lake, or determine the full impacts of its CCR disposal on the nearby community, lake, or groundwater 

quality.308

 

303 Namely: lead (0.027 mg/L), selenium (10 μg/L), iron (3.79 mg/L), manganese (0.103 mg/L), TDS (687 mg/L), 

and zinc (11.9 mg/L). 

304 In its comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0201, USWAG states that while the EIP 

(2010a) Report claims that discharges from the CCW leachate pond exceed federal surface water quality criteria, 

samples were collected directly from the leachate collection system or from the outfall effluent, which is regulated 

by an NPDES permit.

305 Cayuga Lake Watershed Network (2013) makes a reference to Conceptual Closure Plan, Cayuga Ash Disposal 

Facility, Fagan Engineers, September 2002; and Groundwater Contingency Monitoring Results as reported to AES 

Cayuga by AMEC on dates including November 12, 2010.

306 AES Cayuga Contingency Monitoring Summary 2010, 3rd quarter, cited by Cayuga Lake Watershed Network 

(ibid).

307 AES (2010).

308 EIP (2010a).
I. CCR Proven Damage Cases December 2014

71

Evaluation against Damage Criteria309

ICF (2010a) Rationale: Potential damage. <Groundwater exceedances of primary and secondary EPA 

MCLs have been found onsite. Additionally, groundwater exceedances of state and/or federal criteria 

have been found both onsite and offsite; however, the offsite data was gathered from a former private 

residential well now owned by AES. Although discharge water into Cayuga Lake via Outfall 013 

exceeded various federal water criteria, it did not exceed any SPDES permit criteria and there is no 

scientific study available that explicitly documents evidence of damage to human health or the 

environment. Additionally, no assessment of the actual lake water has occurred. The New York 

Department of Conservation issued a NOV to AES for exceeded permit requirements regarding the 

quantity of coal ash disposed. However, this Order did not have an explicit finding of specific damage to 

human health or the environment. There are no other regulatory corrective actions, administrative rulings, 

or court decisions associated with the landfill.>

Postscript: Contaminated leachate and runoff from a CCR landfill that exceed several federal water 

criteria (though not disallowed by State permit) discharge directly from a leachate pond into Cayuga Lake 

via Outfall 013, and contaminated groundwater from a partially unlined CCR landfill. Damage caused to 

groundwater on‐site and to a former private residential well off-site.

References

 

309 ICF (2010).

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels (MCLs) 

or other health-based standards measured in 

groundwater at sufficient distance from the 

waste management unit to indicate that 

hazardous constituents have migrated to the 

extent that they could cause human health 

concerns

 Onsite groundwater exceeded primary EPA MCLs for 

arsenic, cadmium, and selenium.

 Onsite groundwater exceeded EPA SMCLs for 

aluminum, manganese, sulfate, and TDS.

 Onsite groundwater exceeded federal and/or state 

standards for aluminum, arsenic, boron, cadmium, 

manganese, selenium, sulfate, and TDS. 

 Groundwater in a well previously offsite, but acquired by 

AES, exceeded federal and/or state standards for iron, 

lead, manganese, selenium, and TDS.

Criterion 2: Where a scientific study provides 

documented evidence of another type of 

damage to human health or the environment 

(e.g., ecological damage)

 Discharge into Cayuga Lake via Outfall 013 exceeded 

various federal water criteria for arsenic, cadmium, and 

selenium, including the standard for protection of human 

health from surface water ingestion and fish 

consumption, the acute standard for aquatic life, and the 

chronic toxicity standard for aquatic life.

Criterion 3: Where there has been an 

administrative ruling or court decision with an 

explicit finding of specific damage to human 

health or the environment

 In 2009, the New York Department of Conservation 

issued a NOV in response to the facility’s permit 

violations for volume of coal ash disposed. 
I. CCR Proven Damage Cases December 2014

72

Cayuga Lake Watershed Network (2013): Cayuga Lake Watershed Network (CLWN) PSC comments re 

proposed Cayuga Power Plant project to Hon. Jeffrey C. Cohen, Acting Secretary, Department of Public 

Service, Three Empire State Plaza, Albany, New York, August 16, 2013. Accessed Online August 2014.

http://www.cayugalake.org/cayuga-aes-power-plant.html

Ithaca Journal (2013): Converting to gas? Cayuga plant retrofitting may come with new pipeline, Ithaca 

Journal, April 4, 2013. Accessed Online August 2014.

http://www.ithacajournal.com/article/20130404/NEWS01/304040078/Converting-gas-Cayuga-plantretrofitting-may-come-new-pipeline

Ithaca Times (2013): New York State steers Cayuga power plant toward natural gas-fired future. Ithaca 

Times, October 16, 2013, Updated Oct 25, 2013. Accessed Online August 2014.

http://www.ithaca.com/news/new-york-state-steers-cayuga-power-plant-toward-naturalgas/article_144dc350-35e8-11e3-9c12-0019bb2963f4.html

Politics on the Hudson (2012): Owners Could Mothball Tompkins County Coal Plant (UPDATED), 

Politics on the Hudson, 20 July 2012. Accessed Online August 2014.

http://polhudson.lohudblogs.com/2012/07/20/owners-to-mothball-tompkins-county-coal-plant/

AES (2010): The AES Corporation Fiscal Year 2010 Form 10-K (Annual Report), page 104. Accessed 

Online September 2013. 

http://phx.corporateir.net/External.File?item=UGFyZW50SUQ9ODk1MzF8Q2hpbGRJRD0tMXxUeXBlPTM=&t=1

EIP (2010a): In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their 

Environment, Thirty-Nine New Damage Cases of Contamination from Improperly Disposed Coal 

Combustion Waste, Case #22. The Environmental Integrity Project, EarthJustice and Sierra Club, August 

26, 2010. Accessed Online November 2014.

http://www.environmentalintegrity.org/news_reports/08_26_10.php

ICF (2010a): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix C, Case #22. ICF, 10/2010.

NYDEC (2009): Biological Fact Sheet - Cooling Water Intake Structure, AES Cayuga LLC. NY 

Department of Environmental Conservation, August 2009. Accessed Online July 2012. 

http://www.dec.ny.gov/docs/permits_ej_operations_pdf/cayugabiofs.pdf

Peter and Mahr (2008): A New Coal Blending System for AES Cayuga. Jacob A. Peter and Daniel Mahr, 

Power Engineering, 07/01/2008. Accessed Online September 2013. 

http://www.power-eng.com/articles/print/volume-112/issue-7/features/a-new-coal-blending-system-foraes-cayuga.html
I. CCR Proven Damage Cases December 2014

73

PR13. Don Frame Trucking, Inc. Fly Ash Landfill, Pomfret, Chautauqua County, New 

York

Type: Offsite Landfill with Preceding, Adjacent Structural Fill.

Brief Description/Impact: This unlined landfill310 has been used for disposal of about 700,000 cubic 

yards311 of fly ash, bottom ash, and other material, including yard sweepings generated by the Niagara 

Mohawk Power Corporation's Dunkirk Steam Station since 1971.

312 Quarterly water quality analysis and 

various miscellaneous data collected at the facility from March 1989 through September 1998 show 

down-gradient levels of lead greater than the primary MCL Action Level, exceedances that occurred in 

1989 and 1996. The data also document elevations from background of sulfate, total dissolved solids

(TDS), and manganese, including levels of manganese in a water supply well greater than the secondary 

MCL.313, 314

The site is located within the Erie-Ontario Plain physiographic province. The overburden underlying the 

site consists of Quaternary-age lacustrine silt and clay deposits deposited by the Wisconsin glaciation315

and is underlain by bedrock consisting of Upper Devonian (Dunkirk) shale belonging to the Canadaway 

 

310 Facility’s address is 5485 Route 5, Pomfret, NY 14063. The Landfill’s boundaries are delineated by Lamberton 

Road to the west, Van Buren Road (NY Route 73) to the north, and the Conrail Dunkirk-Erie railway line to the 

southeast.

311 Charlotte CCR Proposed Rule Public Hearing, September 14, 2010, pp. 37-43, 385-388:

http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/ccr-rule/transcripts/transcript-charlotte-nc.pdf. 

According to Wood (1978), the landfill was supplied annually with about 153,000 metric tons of fly ash, 31,000 

metric tons of bottom ash, and 3,800 metric tons of pyrite. Prior to the landfill’s operation, CCRs were used in 1965 

as a structural fill material across a local creek (Van Buren Bay Creek) to extend two airport runways.

312 The Dunkirk Steam Station sits on the shore of Lake Erie, 55 miles southwest of Buffalo, in Dunkirk, New York. 

It comprises four generation units: two (96 MW generating capacity each) came on line in 1950 and two others (200 

MW each), in 1959. In the mid-late 1970s, the plant was fueled by eastern coal. NRG purchased the Dunkirk and the 

Huntley stations in 1999 from Niagara Mohawk Power Corp.

In March 2012, NRG Energy Inc., declared that because of a lower demand for electricity, cheaper natural 

gas prices and higher price for coal, the demand for power from the plant has diminished and the Station is being 

mothballed: Speaking up in ‘huge’ issue,http://www.observertoday.com/page/content.detail/id/569593/Speaking-upin--huge--issue.html?nav=5007.

313 According to Cherry et al., (2000), four constituents in down-gradient monitoring wells surpassed federal limits 

at this site: sulfate (3,156 mg/L), TDS (5,046 mg/L), manganese (2.12 mg/L), and iron (64.2 mg/L). 

314 A 1975/76 analysis for 17 parameters (no analyses were conducted for lead; Wood, ibid) of wells onsite and at 

the landfill’s periphery yielded exceedances of arsenic (average: 83 ppb, range 33-191 ppb) in a set of wells 

characterized by alkaline pH values, selenium averaging at 10.2 ppb, and sulfate: 1,798 ppm. Seven domestic wells 

in the landfills vicinity have recorded only elevated iron (697 ppb), but in these wells, sulfate was not measured.

Note, however, that in the absence of individual well data, the shallow sample collection depths (< 6 meters) and the 

location of most wells on the landfill itself, it is not evident which of the results are actually CCR leach data, and 

which ones represent shallow, contaminated groundwater. Ponds at the landfill were high in calcium, iron, 

magnesium, manganese, and sulfate compared to control ponds. A stream adjacent to the site contained greater 

manganese (207 μg/L) and sulfate (229 ppm) than control streams. Average iron concentrations in the biota were 

tripled, and manganese concentrations doubled in biota affected by the coal ash landfill; however, effects of the 

disposal area on the distribution of the biota, if any, were masked by the variability of other (non-CCR) 

environmental factors.

315 The lacustrine deposits were deposited in the former Lakes Whittlesey and Warren during Late Wisconsin 

glaciation. They are classified as silt loam or silty clay loam with thicknesses varying from 1 to 6 meters. They are 

underlain by a gray till containing fragments of the shale bedrock on which it lays. Ranging in thickness from 1.5 to 

7.3 meters, the till is predominantly a silty gravel or gravelly silt with varying amounts of sand and clay (Wood, 

ibid, and references therein). 
I. CCR Proven Damage Cases December 2014

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Group.316 Bedrock exposures along the Lake Erie shore near the study area exhibit two sets of welldefined, vertical to sub-vertical joints, striking N73°E and N56°W with 0.3-1 meter spacing.317 No sizable 

groundwater aquifers exist in the immediate area; the groundwater in the bedrock is confined to joints and 

fractures.318

Wood (1978) documents instances where the landfill operation, which has not involved compacting or 

periodic cover, resulted in extensive erosion of the landfill and dispersion of the CCRs by the Van Buren 

Bay Creek, which in turn necessitated several instances of rechanneling of the creek. Modern practices 

were only introduced in 1973, whereby ash has been laid down in lifts 3-meter thick, and protective soil 

dikes were built around the perimeter of the fill during the landfill’s expansion to prevent uncontrolled 

erosion of the ash and contamination of the surrounding areas.319 On the east side of the landfill, 

groundwater used to emerge as seeps or springs where the water table intersected the ground surface. 

Infiltration into the landfill used to emerge from the ash deposits all along the open western face, to stand 

in shallow ephemeral ponds along the margin. None of this surface water was believed to leave the site as 

there was a low berm west of the ponds capable of containing any runoff.320

Resolution: As a result of the contamination, Don Frame Trucking recommended to the New York State 

Department of Environmental Conservation (NYSDEC) that the affected water supply well should 

immediately be connected to a public water supply. On September 16, 1988, Don Frame Trucking, Inc. 

was directed by the Supreme Court of the State of New York County of Chautauqua, to cease receiving 

the aforementioned wastes at the facility no later than October 15, 1988, in accordance with the standards 

contained in 6 NYCRR Part 360,

321 then close and cap the landfill.322 Post-closure ground water and 

surface water monitoring and maintenance were also expected to continue for 30 years after final closure 

of the entire facility.

Previous Basis for Consideration: Scientific: The lead levels found in down-gradient wells exceed the 

primary MCL Action Level; Administrative: the State has required remedial action as a result of the 

contamination, and the owner was directed, by the State of New York, to cease receiving the 

aforementioned wastes at the facility.

ICF (2010) Rationale: Proven Damage. <Groundwater exceeded MCLs for lead and SMCLs for 

sulfate, TDS, iron, and manganese in downgradient wells. Administrative orders did not contain explicit 

finding of specific damages from CCRs.>

 

316 The bedrock directly beneath but not outcropping at the landfill site is the South Wales Shale Member of the 

Canadaway Formation. This member varies in thickness from 18 to 24 meters and consists of medium light gray to 

medium dark gray shale, with some inter-bedded dark gray shale and light gray siltstone. Wood (ibid, and references 

therein), and TVGA Consultants (2009). On the properties of the Dunkirk Shale/Canadaway Group, see Hill et al., 

(undated) and Lash (undated).

317 Wood, ibid, and reference therein.

318 Wood, ibid.

319 Apparently, these measures were inadequate and at times occasional breaching of the dikes or erosion of the thin 

cover material (often only 5 cm. thick) kept occurring that allowed piping and undermining of the ash.

320 According to Wood (ibid), eight ponds have been constructed at the edge of the landfill to serve as runoff 

catchment basins. These varied from 28 to 6,950 square meters in area, from 0.1 to 3.3 meters in depth, and from 10 

to 14,000 cubic meters in volume.

321 Application of Don Frame Trucking, Inc. Petitioner for a Judgment Pursuant to Article 78 of the CPLR against 

the New York State Department of Environmental Conservation Respondent; Supreme Court of the State of New 

York County of Chautauqua (July 22, 1988). Order G11278. 

322 For technical details concerning capping the site, see EPA (2007). Don Frame Trucking was required, as soon as 

remediation was completed, to submit certification by a licensed professional engineer that the facility was closed in 

accordance with the rules and regulations as stipulated by the NYSDEC by October 21, 1988.
I. CCR Proven Damage Cases December 2014

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References

Hill et al., (undated): Fractured Shale Gas Potential in New York. D. G. Hill, T.E. Lombardi and J.P. 

Martin, TICORA Geosciences, Inc., Arvada, Colorado, USA. Accessed Online June 2012.

http://www.tiogagaslease.org/images/fracturedshalegaspotentialinny.pdf

Lash (undated): Dunkirk Shale (Upper Devonian) as an Ancient Fluid Seal. Gary Lash, Department of 

Geosciences, SUNY Fredonia. Fredonia, NY 14063. Accessed Online June 2012. 

http://www.fredonia.edu/department/geosciences/Lash/fractures/CapSeal/CapSeal.htm

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #3. ICF, 10/2010.

TVGA Consultants (2009): Final Remedial Investigation (RI) Report, Former Edgewood Warehouse Site 

(NYSDEC No. E907032), 320 South Roberts Road, City of Dunkirk, Chautauqua County, New York, 

prepared for: Chautauqua County Department of Public Facilities, by: TVGA Consultants, May 2009. 

Accessed Online June 2012.

http://www.dec.ny.gov/docs/regions_pdf/edgerireport.pdf

EPA (2007): Coal Combustion Waste Damage Case Assessments, Case #3, docket ID EPA-HQ-RCRA2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

Cherry et al., (2000): Review of the Global Adverse Environmental Impacts to Ground Water and 

Aquatic Ecosystems from Coal Combustion Wastes, Final Report, Donald S. Cherry, Rebecca J. Currie, 

and David J. Soucek, prepared for Hoosier Environmental Council and Citizens Coal Council, 

Indianapolis, Indiana 46202, March 28, 2000. Accessed Online June 2012.

http://citizenscoalcouncil.org/wp-content/uploads/2012/04/A-REVIEW-OF-THE-ADVERSEENVIRONMENTAL-IMPACTS-OF-COAL-COMBUS.htm

Wood (1978): Environmental Impact of Coal Ash on Tributary Streams and Nearshore Water of Lake 

Erie, Final Report, Kenneth G. Wood, State University College, Fredonia, New York 14063, August 

1978. Prepared for The U.S. Energy Research and Development Administration Under Contract No. E (l l 

- l) 2726-2. Accessed Online November 2013.

http://www.osti.gov/scitech/biblio/6277419
I. CCR Proven Damage Cases December 2014

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PR14. Belews Lake, Stokes, Rockingham, Guilford, and Forsyth Counties, North 

Carolina323

Type: An unlined cooling lake receiving discharge from a surface impoundment.

324

Brief Description/Impact: The 3,863-acre Belews Lake325 was impounded in 1972 to serve as a cooling 

reservoir for the coal-fired Belews Creek power plant.326 Fly ash was disposed in a settling basin, which 

released selenium-laden (150 to 200 μg/L) effluent in return flows to the lake. Concentrations of selenium 

in the lake water averaged 10 μg/L (selenium values in the impacted portions of the reservoir ranged

between 8 μg/L and 22 μg/L), but selenium accumulated from 519 times (periphyton) to 3,975 times 

(visceral tissue of fish) in the biota. Sediment selenium concentrations ranged mostly from about 4 to near 

30 mg/kg dry weight (dw), with a few samples having concentrations considerably greater, up to 100 

mg/kg. During the contamination episode, the entire lake was affected with the selenium-laden effluents 

except for a small remote headwater region of the reservoir, where selenium concentrations were <1 μg/L. 

The pattern of selenium contamination from the plant and fish impacts persisted from 1974 to 1985, when

the primary selenium source was terminated with the installation of a dry fly ash collection system at the 

power plant, and the rerouting of the NPDES-permitted ash basin effluent to the nearby Dan River.

Due to the selenium contamination, “the most extensively documented case of selenium poisoning in 

freshwater fish,”327 16 of the 20 fish species originally present in the reservoir were entirely eliminated, 

including all the primary sport fish.328 The rates of teratogenic fish amounted to 10-70 percent, vs. a 

normal baseline of 1-3 percent.

329

 

323 The power plant is owned by the merged (July 2012) Duke Power and Progress Energy. This Module is limited 

to the proven damage case associated with the Belews Creek Steam Station. For additional information on the 

Belews Creek Steam Station, Stokes County, North Carolina, and its waste management system, see Technical 

Support Document under Potential Damage Cases (Module PTb33) in the final rule’s docket.

324 EPRI (2010).

325 According to Belews Lake: http://www.duke-energy.com/lakes/facts-and-maps/belews-lake.asp, Belews Lake has 

a shoreline of approximately 88 miles. It is impounded across Belews Creek by a rolled earth fill dam with a 

concrete spillway.

326 According to Young et al., (2010, Fig. A2), monitoring conducted in 1973 showed that Belews Lake supported a

diverse warm-water fishery typical of the ecoregion. The lake’s fish community included several trophic levels, 

including typical warm-water reservoir fish such as shad (Dorosoma spp.; Clupeidae) and blueback herring (Alosa 

aestivalis; Clupeidae), common carp (Cyprinus carpio; Cyprinidae) and minnows (Cyprinidae), largemouth bass 

(Micropterus salmoides; Centrarchidae), crappie (Pomoxis spp.; Centrarchidae), and a variety of sunfish 

(Centrarchidae) as well as several catfish (Ictaluridae).

327 Dennis Lemly (1997), (1999), (2002), and Young et al ibid) and references therein. Waterborne selenium 

concentrations in the lake never reached the then-applicable USEPA chronic selenium criterion for the protection of 

aquatic life (35 μg/L selenium as selenite, dissolved exposure only), yet the fish community was decimated as a 

result of food web selenium bio- accumulation. Consequently, “information from the field studies of selenium 

toxicity in Belews Lake was instrumental in the U.S. Environmental Protection Agency’s decision to lower the U.S. 

national water quality criterion for selenium, from 35-μg/L to 5-μg/L (EPA-440/5-87–006, 1987).” 

328 According to Young et al., (ibid), when maximal selenium inputs occurred, selenium concentrations ranged from 

41 to 97 mg/kg dry weight (dw) in zooplankton and phytoplankton; 15 to 57 mg/kg dw in benthic macroinvertebrates; and 40 to 159 mg/kg dw in fish egg/ovary tissue. According to Young et al., (ibid, Fig. A1), out of as 

many as 29 resident species documented prior to contamination, by 1977 only common carp, catfish, and fathead 

minnows (Pimephales promelas) were found in the remaining downlake fish community. Piscivore and insectivore 

species were virtually absent from the downlake area.

329 Skorupa (1998).
I. CCR Proven Damage Cases December 2014

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Lemly330 concluded that selenium poisoning was still evident in 1996, some 21 years after first being 

detected, and 10 years after selenium inputs to Belews Lake were markedly reduced due to change in the 

power plant’s waste management practices. Concentrations of selenium in fish tissues remained above a 

toxic threshold (4mg/kg whole-body, dw331) some 31 years after selenium impacts first began, due to 

movement of the element from contaminated sediments into benthic food chains.332

Previous Basis for Consideration:

333 Scientific: Evidence of extensive impacts on fish populations 

due to direct discharge to a surface water body. Administrative: the State required changes in operating 

practices to mitigate the contamination.

Resolution: In 1984, under mandates from the State, the power company introduced dry ash handling 

and disposal, and ash-basin decant water (which continued to receive minor selenium contributions from 

power plant bottom ash) was rerouted to the nearby Dan River.334 A fish advisory, issued for selenium in 

1993, was rescinded December 31, 2000.335

ICF (2010) Rationale: Proven Damage. <Selenium discharge impacted fish population.>

References

EPRI (2010): Evaluation of Coal Combustion Product Damage Cases, Volume 2: Case Summaries, 

Final Report, September 2010. Accessed Online July 2012.

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%20

Product%20Damage%20Cases

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #11. ICF, 10/2010.

Lemly (2010): A White Paper on Environmental Damage from Coal Combustion Waste: The Cost of 

Poisoned Fish and Wildlife, A. Dennis Lemly, EPA Docket comment EPA–HQ–RCRA–2009–0640-

6313, Appendix I, December 15, 2010. Accessed Online June 2012.

 

330 Comment to the proposed CCR rule’s docket: EPA-HQ-RCRA-2009-0640-6313, pp. 21-23. Lemly estimated the

monetized value of damage at over $527 million (in $2010). 

331 See also Hamilton (2003). “Recent studies continue to support the dietary selenium threshold of 3μg/g and the 

whole-body selenium threshold of 4μg/g for fish.” However, EPA (2004) proposes a higher threshold: “The draft 

freshwater chronic criterion is expressed as a concentration in whole-body fish tissue of 7.91μg/g, dry weight, and 

says if fish tissue samples exceed 5.85μg/g during summer or fall, fish should be monitored during the winter to 

determine if selenium exceeds 7.91μg/g.” On the status of the Federal selenium-in-fish regulation, see comment to 

the proposed rule’s docket: EPA-HQ-RCRA-2009-0640-2930, Attachment.

332 According to Young et al., (ibid), as the lake-wide selenium contamination diminished into the late 1980s, 

populations of the more sensitive fish species migrating from the upper watershed gradually became reestablished in 

Belews Lake. As the fish community was reestablished, green sunfish (Lepomis cyanellus) were notable among 

centrarchids in their apparent relative tolerance to higher environmental selenium exposures, and in their slightly 

lower propensity to bioaccumulate selenium. By the mid-1990s, the Belews Lake fishery once again represented a 

diverse warm water community, including sensitive fish species, although marginally elevated rates of deformities 

in larval fish were reported as late as 1996.

333 EPA (2007).

334 Young et al., (ibid).

335 In an August 23, 2005 letter from J. Roewer, USWAG, to R. Kinch, EPA/OSWER, USWAG requested that EPA 

identify the Belews Lake in the docket (RCRA-2003-0003) as a site where the previously identified “proven 

damage” has been resolved to the satisfaction of the State through implementation of corrective measures (USWAG, 

2007).
I. CCR Proven Damage Cases December 2014

78

http://prairierivers.org/wp-content/uploads/2012/03/Lemly-2010-Environmental-Damage-from-CCW.pdf

Young et al., (2010): Ecological Assessment of Selenium in the Aquatic Environment; Belews Lake, 

North Carolina. Appendix A. Selected Case Studies of Ecosystem Contamination by Selenium, Terry F. 

Young et al., Edited by Peter M. Chapman et al., CRC Press, 2010, Pages 259–262. Accessed Online 

November 2014.

http://wwwrcamnl.wr.usgs.gov/Selenium/Library_articles/chapman_etal_2010_appendixA.pdf

EPA (2007): Coal Combustion Waste Damage Case Assessments, Case #11, docket ID EPA-HQ-RCRA2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

USWAG (2007): Comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0432, Appendix C, 

February 11, 2008. Accessed Online June 2012. 

http://www.regulations.gov/#!searchResults;rpp=25;po=0;s=EPA-HQ-RCRA-2006-0796-0432

EPA (2004): Draft Aquatic Life Water Quality Criteria for selenium – 2004. USEPA Office of Water, 

EPA-822-D-04-001, November 2004. Accessed Online July 2012.

http://water.epa.gov/scitech/swguidance/standards/upload/2008_10_27_criteria_seleniums_maintext.pdf

Hamilton (2003): Commentary: Review of residue-based selenium toxicity thresholds for freshwater fish. 

Hamilton, S. J., Ecotoxicology and Environmental Safety 56 (2003) 201–210. Accessed Online June 

2012. http://www.seleniumtaskforce.org/images/Hamilton_2003.pdf

Lemly, D. (2002): Symptoms and Implications of Selenium Toxicity in Fish: the Belews Lake Case 

Example. Aquatic Toxicology 57, 39-49. Accessed Online June 2012. 

http://www.srs.fs.usda.gov/pubs/ja/ja_lemly013.pdf

Lemly, D. (1999): Selenium Impacts on Fish: An lnsidious Time Bomb. A. Dennis Lemly, Human and 

Ecological Risk Assessment: Vol. 5, No. 6, pp. 1139–1151 (1999). Accessed Online June 2012. 

http://www.trout.forprod.vt.edu/fishpubs/lemly1999_04.pdf

Skorupa (1998): Selenium poisoning in fish and wildlife in nature: lessons from twelve real-world 

examples, Joseph P. Skorupa, USFWS, Sacramento, California, in: Environmental Chemistry of 

Selenium, William T. Frankenberger Jr. and Richard A. Ergberg, Editors, Mercel Dekker, Inc., 1998. 

Accessed Online June 2012.

http://wwwrcamnl.wr.usgs.gov/Selenium/Library_articles/SePoisoning.pdf

Lemly, D. (1997): Ecosystem Recovery Following Selenium Contamination in Freshwater Reservoir. 

Ecotoxicol. Environ Saf, 36 (3): 275-281. Accessed Online June 2012. 

http://www.ncbi.nlm.nih.gov/pubmed/9143456?itool=EntrezSystem2.PEntrez.Pubmed.Pubmed_ResultsP

anel.Pubmed_RVDocSum&ordinalpos=4

Lemly, D. (1993): Teratogenic Effects of Selenium in Natural Populations of Freshwater Fish, in Draft 

Aquatic Life Water Quality Criteria for Selenium, EPA-822-D-04-001, November 2004. Accessed Online 

June 2012. http://www.epa.gov/waterscience/criteria/selenium/pdfs/complete.pdf

Gillespie and Bauman (1986): Effects of High Tissue Concentrations on Reproduction by Bluegills. 

Gillespie, R.B. and P.C. Baumann, 1986. Trans. Am. Fish. Soc. 115:208-213. Summary in Draft Aquatic 

Life Water Quality Criteria for Selenium, EPA-822-D-04-001, November 2004. Accessed Online June 

2012. http://www.epa.gov/waterscience/criteria/selenium/pdfs/complete.pdf
I. CCR Proven Damage Cases December 2014

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PR15. Dan River Steam Station, Duke Energy,336 Eden, Rockingham County, North 

Carolina

Type: Storm Sewer Line Failure underneath a Surface Impoundments and a Slurry Release.337

Background and Description: The Dan River Steam Station, a coal fired power plant located on the 

north bank of the Dan River in Eden, Rockingham County, North Carolina, began operation in 1949.338

The original coal combustion residual (CCR) impoundment was built in 1956 immediately next to the 

Dan River and had its embankment walls raised twice, in 1968/69 and 1976/77.339 In 1976/77, a dike was 

also built across the impoundment to divide it into the two units (Primary and Secondary ponds) that still 

exist today.340 The two unlined impoundments covered a total of 39 acres with a storage capacity of 664 

acre feet.341 Prior to the Plant’s retirement in 2012, the impoundments were occasionally dredged with the 

dredged CCR stored in an 8-acre, unlined landfill north of the ponds. The landfill was capped and has 

been inactive since 2005. 

In August 1976, the DWQ issued to Progress Energy for the Dan River Plant an NPDES Permit (No. 

NC0003468), subsequently renewed. The current Permit was re-issued on January 31, 2013 and is valid 

to April 30, 2017. This Permit regulates the Plant’s discharge of treated wastewater into the Dan River 

through several outfalls (with the Ash Basin effluent discharged at Outfall 002).342

Impact and Damage Claims: On February 2, 2014, an estimated 30,000-39,000 tons of coal ash and 

up to 27 million gallons of water were released from one of the retired Plant’s ponds into the Dan 

River.343 The nearest municipality that draws water from the river, Danville, is six miles downstream. 

Both Duke Energy and NC DENR took water samples from the river, with greater exceedances for

 

336 In July 2012, Duke Power and Progress Energy merged into Duke Energy Carolinas, LLC.

337 For a summary and analysis of the Dan River’s potential damage case, see a separate module in the Damage Case 

Technical Support Document in the final rule’s docket.

338 The Dan River Steam Station, with a combined generation capacity of 380 MW, had three coal units: The first 

unit came online in 1949, the second in 1950, and the third in 1955. Eden officials try to escape coal ash spill’s dark 

cloud: http://www2.rockinghamnow.com/news/2012/mar/31/out-old-more-efficient-ar-1809111/. According to 

Duke Energy’s Dan River website (http://www.duke-energy.com/power-plants/coal-fired/dan-river.asp, visited 

August 21, 2013), the three coal-fueled generation units were retired on April 1, 2012. In December 2012, Duke 

Energy launched the commercial operation of the new 620-MW Dan River Combined-Cycle, natural gas-fueled 

Station (Three new state-of-the-art power plants improve efficiency, reduce emissions). According to Duke Energy 

(2014), in mid-2014 the Plant has been demolished and would be next subject to boilers’ implosion. 

339 According to Paul Rizzo Associates (2009), from 1968 to 1969, the original pond was extended to the east along 

the Dan River by some 1,200 feet and raised.

340 The ponds received sluiced fly and bottom ash, boiler slug, flue gas emission control residuals, as well as water 

treatment effluents, boiler blow down, coal pile runoff, storm water runoff, and mill rejects.

341 Paul Rizzo Associates (ibid).

342 Complaint and Motion for Injunctive Relief (2013a). The effluent limitations and monitoring requirements for 

discharges from Outfall 002 require sampling for the following parameters: Flow, Oil and Grease, Total Suspended 

Solids, pH, Total Iron, Total Phosphorous, Sulfates, Acute Toxicity, Nitrate/Nitrate Nitrogen, Total Kjeldahl 

Nitrogen,* and Total Nitrogen. *Note: Total Kjeldahl Nitrogen is the sum of organic nitrogen, ammonia (NH3), and 

ammonium (NH4

+

) in the chemical analysis of the wastewater.

343 The pond has a surface area of 27 acres and liquid capacity of 155 million gallons, but was at a lower level due to 

the Dan River’s Plant retirement in 2012. The initial release estimate by Duke Energy was 50,000 to 82,000 tons of 

coal ash.
I. CCR Proven Damage Cases December 2014

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several constituents noted downstream.344 The spill was caused by the failure of a 48-inch diameter, metal 

storm sewer line that runs under the ash pond. Liquefied ash flowed from the inactive pond into the failed 

section of the line, and then into the Dan River. Coal ash was visible on the banks of the Dan River on 

February 3rd, and the water was tinted gray. No immediate fish kills or other impacts to wildlife have been 

reported.345 In a February 9, 2014 update, US EPA Region 4 said its sampling indicates that local drinking 

water met federal standards at that time. The agency said it was still evaluating potential ecological 

impacts and considering long-term cleanup options.346

Resolution: In wake of the February 2, 2014 spill of liquefied coal ash into the Dan River, a Unified 

Command was set up.347 Duke Energy managed to install a permanent plug in the breached sewer pipe 

which stopped the ash slurry’s flow into the Dan River about six days following the incident. Following 

the spill, NC DENR moved to scuttle a previously proposed settlement with the company over pollution 

leaking from waste ponds elsewhere in the State,348 and Duke mobilized to first dredge some 2,500 ton of 

coal ash deposited on the upstream side of the Schoolfield Dam.349 While the removal of fly ash 

accumulations from the Dan River next to Danville’s water treatment plant in May 2014 was about to be 

launched, the City of Danville was contemplating collecting damages from Duke Energy.350 In mid-July 

2014, Duke Energy tentatively completed the cleanup of the Dan River.351

 

344 According to NC DENR web bulletins: DENR releases remaining test results from water quality sampling near 

coal ash spill:http://portal.ncdenr.org/c/journal/view_article_content?groupId=4711509&articleId=18618621 and 

State regulators clarify reports on arsenic test results near coal ash spill:

http://www.ncdenr.gov/c/journal/view_article_content?groupId=4711509&articleId=18649005, sampling results 

from February 7 show exceedances of regulated surface water standards for copper, iron and aluminum upstream 

and downstream of the spill, but those exceedances were far greater downstream than upstream. Also, samples 

collected on February 3rd and 4th revealed that arsenic levels exceeded a state standard for surface water quality. 

Levels of arsenic decreased at the two downstream sampling points between February 3rd and 4th 2014: The arsenic 

concentrations collected on February 3 below the spill site were 40 μg/L at the site closest to the spill (Draper 

Landing), and 13 μg/L at the Virginia state line. On February 4, the concentrations had decreased to 6.3 μg/L at the 

Draper Landing site, and 10 μg/L at the Virginia state line. North Carolina’s arsenic state human health standard is 

10 μg/L. 

345 Charlotteobserver (2014). 

346 Bloomberg BNA (2014). 

347 The Unified Command consists of EPA Region 4, Duke Energy, North Carolina Department of Environment and 

Natural Resources (NC DENR), The Virginia Department of Environmental Quality (VDEQ), and the US Fish and 

Wildlife Service (FWS).

348 ABC News (2014). Under the scuttled deal, Duke would have paid fines of $99,111 for pollution that leaked 

from two coal ponds at its power plants near Asheville and Charlotte.

349 Danville Register & Bee (2014). 

350 Charlotteobserver (2014a). 

351 Duke dredged up about 2,500 tons of ash and contaminated sediment that settled against a dam in Danville, 

Virginia, a 20-by-350-yard section of the river. An additional 500 tons was recovered from other pockets in the river 

and settling tanks at two municipal water treatment plants in Virginia. Flow patterns in the river dispersed much of 

the spill along the first 20 miles downstream from the Eden plant, but they left substantial deposits at only three 

spots in the open river: near the plant where the spill occurred, about two miles downstream at Town Creek in 

Rockingham County, and just upstream from Schoolfield Dam in Danville (Winston-Salem Journal, 2014). The 

EPA said recent testing of both the river water and bottom sediment has shown concentrations of toxic metals below 

federal limits and close to what was most likely present before the spill (NY Times, 2014 and Roanoke, 2014). 

According to Roanoke (2014), over the next two years, the Virginia Department of Environmental Quality will test 

the water and fish in the river as well as river sediments, as will VDEQ’s counterpart in North Carolina, Duke 

Energy, and federal agencies. In addition, two water protection groups - the Roanoke River Basin Association and 

the Dan River Basin Association - fearful that coal ash will continue to be churned up from the river bottom during 

floods or storms - are teaming up to continue monitoring the Dan River in North Carolina and Virginia. NC DHHS 

officials said that “contaminants associated with the coal ash spill are at levels that should not pose a health risk 

during recreational use of the river;” however, NC DHHS is leaving in place the advisory against eating fish and 
I. CCR Proven Damage Cases December 2014

81

On February 28, 2014, NC DENR issued two notices of violation (NOVs) relating to violations of 

wastewater and stormwater regulations at Dan River Plant; and on March 5, NC DENR issued five NOVs 

to Duke Energy for failure to obtain NPDES permits at five facilities.352

In a March 12, 2014 letter to North Carolina’s Governor and the State’s Secretary of DENR, Duke 

Energy committed to clean-close the plant’s inactive ash ponds by removing their contents to a lined 

structural landfill or a lined landfill.353

Proven Damage Case Rationale: Sewer line failure underneath an inactive but still not closed CCR 

impoundment impacted river environment; two NOVs issued in response to violations of wastewater and 

stormwater control regulations.

References

ABC News (2014): Duke Plans to Dredge River as Coal Ash Deal Dumped; ABC News, February 11, 2014. Accessed 

Online August 2014.

http://abcnews.go.com/US/wireStory/apnewsbreak-nc-delays-coal-ash-deal-duke-22455403

Bloomberg BNA (2014): Duke Energy Stops Coal Ash Leak, Plans Long-Term Cleanup of River. 

Bloomberg BNA Daily Environmental Report, Feb. 10, 2014. Accessed Online October 2014. 

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=41535930&vname=dennotallissues&jd=a0

e6k1e4c5&split=0

Charlotteobserver (2014): Duke Energy Plant Reports Coal-Ash Spill: The Charlotteobserver, February 4, 

2014. Accessed Online October 2014.

http://www.charlotteobserver.com/2014/02/03/4661193/duke-energy-plant-reports-coal.html#

Charlotteobserver (2014a): Duke Energy begins coal-ash dredging in Dan River, Charlotteobserver.com, 

May 12, 2014. Accessed Online August 2014.

http://www.charlotteobserver.com/2014/05/12/4905751/coal-ash-dredging-starts-in-dan.html

Danville Register & Bee (2014): Duke Energy to take coal ash to N.C. landfill. John R. Crane, Danville 

Register & Bee, April 14, 2014. Accessed Online August 2014. 

http://www.roanoke.com/news/local/duke-energy-to-take-coal-ash-to-n-c-landfill/article_0b2a1826-c442-

11e3-938a-0017a43b2370.html

Duke Energy (2014): Coal Plant Decommissioning Program, Duke Energy’s website. Accessed Online 

July 2014.

http://www.duke-energy.com/about-us/decommissioning-program.asp

 

shellfish collected from the Dan River downstream of the Duke Power-Eden spill site (Winston-Salem Journal, 

2014a). For further information on the February 2014 spill, see NC DENR’S Dan River Coal Ash Spill website and 

Duke Energy (2014a, 2014b).

352 In March of 2014, NC DENR invited the U.S. EPA to partner with them in a potential enforcement action against 

Duke Energy for Clean Water Act (CWA) violations at all 14 coal ash facilities. EPA agreed and the partnership has 

since worked to assess the extent of Duke’s non-compliance with the CWA (NC DENR, 2014).

353 ‘March 12 letter from Duke CEO Lynn Good to Gov. McCrory and Sec. Skvarla’: 

http://portal.ncdenr.org/web/guest/dan-river-documents. According to Duke (2014a), clean closure of the ash ponds 

on the river’s bank would be completed within 24 to 30 months once the destination for the ash is determined and 

the necessary permits secured.
I. CCR Proven Damage Cases December 2014

82

Duke Energy (2014a): Dan River Response, Duke Energy’s website. Accessed Online July 2014.

http://www.duke-energy.com/dan-river/

Duke Energy (2014b): Ash Management, Duke Energy’s website. Accessed Online July 2014.

http://www.duke-energy.com/ash-management/

NC DENR (2014): North Carolina Department of Environment and Natural Resources Division of Water 

Resources Quarterly Report to the Environmental Review Commission on Operations, Activities, 

Programs and Progress Relating to Coal Combustion Residuals Surface Impoundments, October 1, 2014. 

Accessed Online October 2014.

Dan River Plant/Coal Ash Facility Documents/Legislative Reports - Coal Ash/Quarterly Report on 

Operations, Activities, Programs and Progress Relating to Coal Combustion Residuals Surface 

Impoundments - Oct. 2014.

http://portal.ncdenr.org/web/guest/dan-river-documents

NY Times (2014): North Carolina: Coal Ash Cleanup Ends, NY Times, July 17, 2014. Accessed Online 

August 2014.

http://www.nytimes.com/2014/07/18/us/north-carolina-coal-ash-cleanupends.html?mabReward=RI%3A8&action=click&contentCollection=Middle%20East®ion=Footer&mo

dule=Recommendation&src=recg&pgtype=article

Roanoke (2014): NC, Va. groups to monitor coal ash in Dan River, Ranoke.com, July 21, 2014. Accessed 

Online August 2014.

http://www.roanoke.com/ap/state/nc-va-groups-to-monitor-coal-ash-in-dan-river/article_1c717af8-8568-

5f4c-87c1-49b8328359b9.html)

Winston-Salem Journal (2014): Officials suspend removal efforts on Dan River. July 16, 2014. Accessed 

Online October 2014.

http://www.journalnow.com/news/local/officials-suspend-removal-efforts-on-dan-river/article_0c0865e7-

e8d5-5ad7-8166-5df6b320108a.html

Winston-Salem Journal, (2014a). Local officials say it is OK to use Dan River. July 22, 2014. Accessed 

Online August 2014.

http://www.journalnow.com/news/local/officials-say-it-s-ok-to-use-dan-river/article_e6a6b8d8-121b11e4-80ac-001a4bcf6878.html

Complaint and Motion for Injunctive Relief (2013a): State of North Carolina v. Duke Energy Carolinas 

LLC, N.C. Supreme Ct. (Mecklenburg). Docket number unavailable, August 16, 2013. Accessed Online 

August 2013.

http://portal.ncdenr.org/web/wq/hot-topics/duke_energy_aug2013injunctions

Dan River Power Station (2009): Dan River Power Station – Response to Request for Information under 

Section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 

U.S.C.9604(e), March 25, 2009. Accessed Online May 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/duke-dan-river.pdf 

Paul C. Rizzo Associates (2009): CCW Impoundments Inspection Report, Dan River Steam Station, 

Rockingham County, North Carolina, Final Report, Paul C. Rizzo Associates, Inc., September 2009. 

Accessed Online May 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/dan-river-final.pdf 
I. CCR Proven Damage Cases December 2014

83

PR16. Hyco Lake, Roxboro, Person County, North Carolina354

Type: An Unlined Cooling Lake Receiving Discharge from Two Surface Impoundments.355

Brief Description: The 3,750 acre Hyco Lake was constructed in 1964 as a cooling water source for the 

Carolina Power and Light (CP&L) Roxboro Steam Electric Plant356 and to receive waters for coal-ash 

leachate-effluents.357 The lake received discharges from the plant's ash-settling ponds containing high 

levels of selenium.358 The selenium accumulated in the fish in the lake, affecting reproduction and causing 

declines in fish populations in the late 1970s and 1980s. Consequently, in 1988 the North Carolina 

Department of Health and Human Services (NCDHHS) issued a consumption restriction advisory for 

selenium contamination in fish from the Lake.359 

Impact: According to Young et al., (2010), selenium was predominantly in the soluble selenite form as it 

entered Hyco Lake. The degree of selenium contamination varied within the lake, with head-water areas 

and portions of the lake most distant from the effluent outfall being less impacted, as compared to areas 

closer to the ash pond discharge. Water-column selenium concentrations in areas near the effluent source 

were as high as 7 to 14μg/L, to near 1μg/L or less elsewhere. Sediment concentrations ranged over an 

order of magnitude, from 3.6 to 35 mg/kg dry weight (dw), depending on proximity to the effluent source. 

Selenium concentrations in phytoplankton during the height of the contamination ranged from about 5 to 

slightly above 60 mg/kg dw. Selenium concentrations in benthic invertebrates ranged from 30 mg/kg dw 

to a maximum of 88 mg/kg dw. Fish tissue concentrations were monitored in bluegill (Lepomis 

macrochirus) and largemouth bass (Micropterus salmoides) during the maximal selenium inputs into the 

reservoir. Bluegill muscle concentrations at the peak of the contamination episode ranged between 22 and 

68 mg/kg dw, and liver concentrations ranged between 27 and 239 mg/kg dw. Largemouth bass tissues, 

sampled after the power plant introduced dry fly ash collection methods and curtailed effluent selenium 

loading to the reservoir, were lower, in part reflecting lower lake-wide environmental concentrations of 

selenium. Largemouth bass muscle selenium ranged from 7 to 24 mg/kg dw, with liver concentrations 

ranging between approximately 10 and 35 mg/kg dw.

 

354 At the time of the damage case, owned by Carolina Power and Light (now: Progress Energy). Progress Energy 

merged on July 2, 2012 with the former owner, Duke Energy.

355 EPRI (2010).

356 The four-unit, 2,422-MW coal-fired Plant is one of the largest power plants in the United States. It is located in 

Semora, N.C. and began operation in 1966, with additions in 1973 and 1980. The plant uses coal mined mostly in 

West Virginia that is delivered by rail. The plant burns anywhere from 15,000 to 25,000 tons of coal daily (Roxboro

Steam Plant: http://www.duke-energy.com/power-plants/coal-fired/roxboro.asp and Hyco Lake, North Carolina: 

http://www.hycolake.com/plant.htm). At some point in time, the power plant switched to a closed-cycle cooling 

system, which uses only the lake for make-up water and cooling (Hyco Lake, North Carolina: 

http://www.hycolake.com/facts.htm.

357 Crutchfield (2000). The reservoir is classified as oligotrophic to mesotrophic in biological productivity, is 

dendritic in morphology, and has four major tributaries: Cane Creek Complex, Cobb’s Creek, North Hyco River, 

and South Hyco River. Thermal and ash pond effluents enter the reservoir at the confluence of the North Hyco and 

South Hyco Rivers. The Hyco Reservoir has a surface area of 1760 ha (17.6 km2), a volume of 9.62 × 107 m3, a 

drainage area of 471 km2, a mean depth of 6.1 m, an average inflow of 5.7 m3/sec, and a mean hydraulic residence 

time of approximately six to nine months.

358 According to Skorupa (1998), water entering the reservoir from fly ash settling basins contained between 50 and 

200μg/L selenium.

359 Since its establishment, the Lake has been the area's main destination for fishing, boating, and water recreation. 

The elevated selenium issue was first brought to EPA’s attention in a letter from the Hoosier Environmental Council 

to the RCRA Docket Information Center as a comment to the Coal Combustion Waste May 2000 Regulatory 

Determination, September 19, 2000 docket. 
I. CCR Proven Damage Cases December 2014

84

According to Lemly,360 three species of sport fish361 were virtually eliminated and severe reductions 

occurred in twelve other major taxa. Extensive population and community-level impacts caused local 

extinction of species and shifts in dominance of other species.362 Selenium toxicity was associated with 

fish larval mortality.363 Levels of selenium in fish tissues remained above a toxic threshold (4mg/kg 

whole-body, dw364) in 2005, 31 years after depressed fish populations were first noted and fifteen years 

after selenium inputs to the Lake were markedly reduced. This is attributed to the movement of selenium 

from contaminated sediments into benthic food chains.365

In 1990, a dry ash handling system was implemented resulting in lower selenium discharge. As a result, 

mean selenium concentrations in reservoir waters at the power plant discharge declined from 8.8 μg/L to 

3.2 μg/L within one year of the system’s operation.366 Subsequently, based on the results of fish tissue 

sampling, the fish consumption advisory was rescinded in stages starting in 1994, until completely 

rescinded in August, 2001.367

Other Considerations: “A preliminary investigation of the water quality of Hyco Lake, which receives 

about 1000 MGD of CCR effluents, has revealed high levels of boron (up to 1,200 ppb) in the lake 

water.”368

Resolution: Corrective Action Taken: the electric utility company presumably switched to dry disposal 

of fly ash in 1990.369 To determine the effectiveness of the new, dry handling system, the Department of 

Water Quality is requiring long-term monitoring of the lake.370

 

360 Comment to the CCR proposed rule docket: Case 2: Roxboro Electric steam Plant, EPA-HQ-RCRA-2009-0640-

6313.

361 Namely, Largemouth bass, striped bass, and chain pickerel.

362 Lemly (2010) estimated the monetized damage at the site as close to $877 million ($2010).

363 Gillespie and Baumann (1986).

364 See also Hamilton (2003): “Recent studies continue to support the dietary selenium threshold of 3μg/g and the 

whole-body selenium threshold of 4μg/g for fish.” However, EPA (2004) proposes a higher threshold: “The draft 

freshwater chronic criterion is expressed as a concentration in whole-body fish tissue of 7.91μg/g, dry weight, and 

says if fish tissue samples exceed 5.85μg/g during summer or fall, fish should be monitored during the winter to 

determine if selenium exceeds 7.91μg/g.” On the status of the Federal selenium-in-fish regulation, see comment to 

the proposed rule’s docket: EPA-HQ-RCRA-2009-0640-2930, Attachment.

365 See also Hamilton (2003). 

366 Crutchfield (2000).

367 Selenium Posting on Hyco Lake Rescinded, North Carolina Department of Health and Human Services (NC

DHHS), August 2001. 

368 A. Vengosh, Duke University, 2010 Comment submitted to the proposed CCR rule Docket: EPA–HQ–RCRA–

2009–0640-7785. According to Ruhl et al., (2012, Fig. 4), the outfall water discharged into the Lake contains up to 

1,500 ppb of boron and 4.5 ppb of selenium.

369 EPRI (2010). This statement is, however, at a logger head with extensive evidence supporting the continuation of 

sluiced CCR to onsite storage or treatment ponds (West Ash Pond, FGD Settling Pond, and FGD Flush Pond, 

subject to NPDES Permit NC-0003425: Rizzo Associates, 2009) and continued CCR effluent discharge into Hyco 

Lake (Ruhl et al., 2012). According to Rizzo Associates (ibid), the wastewater treatment system was constructed and 

made operative between 2007 and 2009.

370 According to SETAC Pellston Workshop (2010), it is difficult to generalize about recovery rates of systems when 

selenium contamination is reduced or removed. Recovery is a function of the ecosystem and the ability to totally 

eliminate mass loading to the system. Experience at Hyco Lake (and Belews Lake) shows that once the source is 

removed, aquatic communities (although not always comprised of the same species) can return within a few years; 

however, selenium in sediments can contribute to long (decadal) recovery times of tissue residues and potentially to 

associated adverse effects in consumers.
I. CCR Proven Damage Cases December 2014

85

The consumption restriction advisory for selenium contamination in fish from the Reservoir issued by the 

NC DHHS in 1988 was rescinded in 2001.371

Based on monitoring data from this site372 showing some constituents exceeded state water standards,373

on October 10, 2012, the Southern Environmental Law Center (SELC) filed a complaint with the North 

Carolina Environmental Management Commission (EMC) on behalf of several citizens’ groups 

requesting the following rulings:

a) Operators of coal ash lagoons with NPDES permits first issued on or before December 30, 

1983, must take corrective action pursuant to 15A N.C. Admin. Code 2L .0106(c) when their 

activity results in an increase in the concentration of a substance in excess of groundwater quality 

standards, whether or not groundwater quality standards have been exceeded at or beyond a 

compliance boundary around the CCR ponds;

b) Operators of CCR ponds with NPDES permits first issued on or before December 30, 1983, 

must take immediate action to eliminate sources of contamination that cause a concentration of a 

substance in excess of groundwater quality standards, in advance of their separate obligation to 

propose and implement a corrective action plan for the restoration of groundwater quality 

contaminated by those sources; and

c) Operators of closed and inactive CCR ponds must implement corrective action as unpermitted 

activities pursuant to 15A N.C. Admin. Code 2L .0106(c).

On December 3, 2012, the North Carolina EMC upheld state regulators' interpretation of groundwater 

protection requirements for coal ash ponds: in taking that action, the EMC rejected a request by 

environmental advocacy groups for an order that would require the cleanup of groundwater at fourteen 

coal-fired facilities in North Carolina. The commission found that the Division of Water Quality correctly 

interpreted state law and regulations and that pre-1984 ponds at issue had compliance boundaries even 

though, for corrective action purposes, they were deemed “non-permitted.”374

In response to EMC’s decision, on January 8, 2013, SELC filed a complaint in the Wake County Superior 

Court on behalf of several conservation groups375 ‘to protect North Carolina communities and 

groundwater from toxic coal ash contamination at 14 coal-fired power plants across the state.’ The 

lawsuit would require cleanup of groundwater contamination around unlined coal ash ponds, including 

those of Roxboro’s Steam Plant.376

 

371 In an August 23, 2005 letter from J. Roewer, USWAG, to R. Kinch, EPA/OSWER, USWAG requested that EPA 

identify the Hyco Lake in the docket (RCRA-2003-0003) as a site where the previously identified “proven damage” 

has been resolved to the satisfaction of the State through implementation of corrective measures; USWAG’s 

comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0432, Appendix C.

372 The data cover the period of January 2010 to July 2012.

373 Cape Fear River Watch and Others (2012). NC DENR has documentation of exceedances of groundwater

standards inside the compliance boundaries of fourteen coal-fired power plants in North Carolina with coal ash

impoundments permitted prior to 1984, without modern construction techniques and permitting standards. Similarly 

to the other thirteen facilities, groundwater inside the compliance boundary of the Roxboro Steam Electric Plant 

exceeds standards for multiple contaminants.

374https://essential.bna.com/login/signin?msg=deny&url=http%3A%2F%2Fnews.bna.com%2Fdeln%2Fdisplay%2Fl

ink_res.adp%3Ffedfid%3D28835414%26fname%3Da0d4y8f2r4%26vname%3Ddennotallissues&authenDec=-203

375 The Cape Fear River Watch, Sierra Club, Waterkeeper Alliance, and Western North Carolina Alliance.

376 Southern Environmental Law Center Press Release, January 8, 2013: 

http://www.southernenvironment.org/newsroom/press_releases/groups_in_court_to_stop_groundwater_contaminati

on_from_toxic_coal_ash_waste/
I. CCR Proven Damage Cases December 2014

86

A recent study377 demonstrated that effluents released through Hyco Lake’s outfall show exceedance of 

boron’s Health Advisory standard in Hyco Lake’s water and elevated boron concentrations in pore water 

of the Lake’s bottom sediments as compared to the Hyco Lake upstream samples.378 In addition, 2009 

dam integrity inspections of the 2007-constructed FGD settling pond and the 1986-constructed West Ash 

Pond noted significant seepage from both ponds into Hyco Lake.379 Finally, on March 3, 2014, NC DNER 

issued to the Roxboro Steam Plant a Notice of Violation for failing to secure a storm water permit.380

Previous Basis for Consideration: Scientific: declines in fish populations were observed (1970s and 

1980). Administrative: the State concluded that the impacts were attributable to the ash ponds, and issued 

a fish consumption advisory as a result of the contamination.

ICF (2010) Rationale: Proven Damage. <Impact to Fish populations reported from selenium 

concentrations; State concluded impacts attributable to ash ponds and issued fish consumption advisory.>

References

Newsobserver (2014): Regulators Frustrated at Slow Pace of Duke Coal Ash Stormwater Controls. 

Newsobserver.com, April 3, 2014. Accessed Onsite August 2014.

http://www.newsobserver.com/2014/03/03/3670322/denr-accuses-five-more-duke-plants.html

Thinkprogress (2014): Five More Duke energy Power Plants Cited for Storing Coal Waste Improperly. 

Thinkprogress, March 4, 2014. Accessed Onsite August 2014.

http://thinkprogress.org/climate/2014/03/04/3359261/stormwater-violations-duke-energy/

Cape Fear River Watch and Others (2012): Request for Declaratory Ruling to the North Carolina 

Environmental Management Commission (“EMC”) for a ruling clarifying application of the EMC’s 

groundwater protection rule to coal ash lagoons1 that contaminate groundwater in excess of water quality 

standards. Cape Fear River Watch, Sierra Club, Waterkeeper Alliance, and Western North Carolina 

Alliance, Petitioners. October 10, 2012. Accessed Online October 2012. 

http://www.southernenvironment.org/uploads/fck/2012%2010-

10%20Pet'r%20Mot%20%20For%20Declaratory%20Ruling%20(Motion%20only).pdf

Ruhl et al., (2012): The Impact of Coal Combustion Residue Effluent on Water Resources: A North 

Carolina Example. Laura Ruhl, Avner Vengosh, Gary S. Dwyer, Heileen Hsu-Kim, Grace Schwartz,

Autumn Romanski, and S. Daniel Smith, Environmental Science & Technology, Volume 43, Number 16, 

pp. 6326–6333. Accessed Online June 2012. http://www.ejrc.cau.edu/Statements%2010-27-

09/Attachment%202_Duke%20Study.pdf

EPRI (2010): Evaluation of Coal Combustion Product Damage Cases, Volume 2: Case Summaries, Final 

Report, September 2010. Accessed Online July 2012.

 

377 Ruhl et al., (2012), August 2011 sampling.

378 For instance, August 2011 sampling at Hyco Lake’s Outfall recorded (all data in ppm) 65.2 for chloride, 29.3 for 

sulfate, 1,024 for boron, 6.5 for arsenic, and 10.6 for molybdenum, resulting in Hyco Lake downstream 

concentrations of 63.9 for chloride, 29.9 for sulfate, 976 for boron, 4.1 for arsenic, and 10.2 for molybdenum. The 

comparable concentration values for Hyco Lake Upstream are 28.9 for chloride, 13.8 for sulfate, 386 for boron, 1.3 

for arsenic, and 2.6 for molybdenum.

379 Rizzo Associates (ibid). 

380 The Dan River Steam Plant was issued two stormwater NOVs on February 28, 2014. In addition to the Roxboro 

Steam Station, on March 3, four additional Duke Energy Steam Stations were cited for failing to secure a storm 

water permit: Belews Creek, Cliffside, Lee, and Sutton (ThinkProgress, 2014; Newsobserver, 2014).
I. CCR Proven Damage Cases December 2014

87

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%20

Product%20Damage%20Cases

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #7. ICF, 10/2010.

Lemly (2010): A White Paper on Environmental Damage from Coal Combustion Waste: The Cost of 

Poisoned Fish and Wildlife, A. Dennis Lemly, EPA Docket comment EPA–HQ–RCRA–2009–0640-

6313, Appendix I, December 15, 2010. Accessed Online July 2012.

http://prairierivers.org/wp-content/uploads/2012/03/Lemly-2010-Environmental-Damage-from-CCW.pdf 

SETAC Pellston Workshop (2010): Ecological Assessment of Selenium in the Aquatic Environment, 

Summary of a SETAC Pellston Workshop, Peter M Chapman, William J Adams, Marjorie L Brooks, 

Charles G Delos, Samuel N Luoma, William A Maher, Harry M Ohlendorf, Teresa S Presser, and D 

Patrick Shaw, Editors, Summary of the SETAC Pellston Workshop on Ecological Assessment of 

Selenium in the Aquatic Environment, 22–28 February 2009, Pensacola, Florida, USA. Accessed Online 

June 2012.

http://wwwrcamnl.wr.usgs.gov/Selenium/Library_articles/pellston_SELSummary.pdf

Young et al., (2010): Ecological Assessment of Selenium in the Aquatic Environment; Hyco Lake, North 

Carolina. Appendix A. Selected Case Studies of Ecosystem Contamination by Selenium, Terry F. Young 

et. al., Edited by Peter M. Chapman et. al., CRC Press, 2010, Pages 262–264. Accessed Online June 

2012.

http://wwwrcamnl.wr.usgs.gov/Selenium/Library_articles/chapman_etal_2010_appendixA.pdf

Rizzo Associates (2009): CCW Impoundments Inspection Final Report, Roxboro Steam Electric Plant, 

Person County, North Carolina. Paul C. Rizzo Associates, Inc., Columbia, South Carolina, Project No. 

09-4157, December, 2009. Accessed Online September 2013.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/pec_roxboro_final.pdf

EPA (2007): Coal Combustion Waste Damage Case Assessments, Case #7, docket ID EPA-HQ-RCRA2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

EPA (2004): Draft Aquatic Life Water Quality Criteria for selenium – 2004. USEPA Office of Water, 

EPA-822-D-04-001, November 2004. Accessed Online July 2012.

http://water.epa.gov/scitech/swguidance/standards/upload/2008_10_27_criteria_seleniums_maintext.pdf

Hamilton (2003): Commentary: Review of residue-based selenium toxicity thresholds for freshwater fish. 

Hamilton, S. J., Ecotoxicology and Environmental Safety 56 (2003) 201–210. Accessed Online July 

2012.

http://www.seleniumtaskforce.org/images/Hamilton_2003.pdf

Crutchfield (2000): Recovery of a power plant cooling reservoir ecosystem from selenium 

bioaccumulation, John U Crutchfield Jr., Environmental Science & Policy, Volume 3, Supplement 1, 1 

September 2000, Pages 145–163. Accessed Online October 2012.

http://www.sciencedirect.com/science/article/pii/S1462901100000423

Skorupa (1998): Selenium poisoning in fish and wildlife in nature: lessons from twelve real-world 

examples. Joseph P. Skorupa, USFWS, Sacramento, California. In: Environmental Chemistry of 
I. CCR Proven Damage Cases December 2014

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Selenium, William T. Frankenberger Jr. and Richard A. Ergberg, Edits, Mercel Dekker, Inc., 1998. 

Accessed Online June 2012.

http://wwwrcamnl.wr.usgs.gov/Selenium/Library_articles/SePoisoning.pdf

Gillespie and Bauman (1986): Effects of High Tissue Concentrations on Reproduction by Bluegills. 

Gillespie, R.B. and P.C. Baumann. 1986. Trans. Am. Fish. Soc. 115:208-213. Summary in Draft Aquatic 

Life Water Quality Criteria for Selenium, EPA-822-D-04-001, November 2004. Accessed Online June 

2012. http://www.epa.gov/waterscience/criteria/selenium/pdfs/complete.pdf

PR17. Swift Creek Structural Fill Site ReUse Technology, Inc. /Full Circle Solutions, 

Inc.,381 Rocky Mount, Nash County,382 North Carolina

Type: Structural Fill.

Background and Description: This 25-acre structural fill site that received CCRs from four North 

Carolina and Virginia Cogentrix power plants,383 operated from 1991 through at least 2001.384 The Swift 

Creek site was classified as beneficial use site, and as such did not require a permit from the North 

Carolina Department of Environment and Natural Resources (NC DENR).385 On June 26, 1996, Reuse 

 

381 The companies that worked the Swift Creek project were ReUse Technology, a wholly owned subsidiary of 

Charlotte-based Cogentrix, which in turn is a wholly owned subsidiary of the Goldman Sachs Group, and Full Circle 

Solutions. ReUse Technology is the broker that filed the 1991 notification of the project. Prior to Goldman Sachs’ 

purchase of Cogentrix in 2003, ReUse Technology transferred its ash removal operations and other assets to Full 

Circle Solutions.

382 Swift Creek Structural Fill is located along Hwy 301, close to N. Battleboro and near the City of Rocky Mount.

383 NC DENR claims that the coal ash was generated actually only by four plants: three Cogentrix plants located in 

NC (Battleboro, Elizabethtown and Lumberton), and one plant located in VA (Richmond): EPA-HQ-RCRA-2011-

0392-0267. However, their designation, where the Elizabethtown and Lumberton plants are addressed as separate 

facilities, is incoherent. The six plants cited in EIP (2010) are as follows: Lumberton, Elizabethtown (NC): originally 

developed in 1984 by Cogentrix Energy, Inc., North Carolina Power Holdings, LLC now owns these two, 35 MWeach, coal-fired power generating plants, located in Lumberton and Elizabethtown, respectively (Highstar Capital, 

2014). Kenansville (NC): In 2008, Coastal Carolina Clean Power has applied to the North Carolina Utilities 

Commission requesting to convert this 1986-established Plant from coal to biomass, with a generation capacity of up 

to 32 MW (Triangle Business Journal, 2008). Rock Mount (NC): This Power Plant, on the Tar River, once provided 

power for the city of Rock Mount. It has been decommissioned and is now home to offices and a restaurant 

(RockyMount, 2013). Hopewell (VA): This Dominion-owned 63 MW coal-fired plant is located in Hopewell, 

Virginia. The station began commercial operations in July, 1992 and was subsequently re-commissioned on April 1, 

2007 (Dominion, 2014). Portsmouth (VA): The four coal-fired generating unit and eight gas turbines plant has a 

generation capacity of 717 MW. Portsmouth Power Station was renamed in late 1983 to Chesapeake Energy Center. 

Owned by Dominion, it is located beside the southern branch of the Elizabeth River in the city of Chesapeake, 

Virginia. The station switched from coal to oil in the 1970s; then, with the soaring price of oil, Chesapeake Units 3 

and 4 were re-converted to coal by the early 1980s, and the station's two oldest units (111 MW-each) were reconverted to burn coal in 1987 (Dominion, 2014a).

384 According to EIP (2010), CCR placement continued possibly until January 2003.

385 This structural fill, as many others in North Carolina, was built before regulations became effective in 1994. 

Regulations 15A NCAC 13B.1700, Requirements for Beneficial Use of Coal Combustion By-Products, include 

requirements that the user give DWM notice of intent to construct and a final certification that construction was 

done according to regulations. The rules also set out siting, design, construction, operation, closure, and recordation 

requirements; NC DENR comment to the CCR proposed rule docket: EPA-HQ-RCRA-2009-0640-9282, 

http://portal.ncdenr.org/c/document_library/get_file?uuid=c3f45e27-b0da-4a0d-9c94-915aa21f97a3&groupId=14

and North Carolina DENR comment to the October 2011 NODA: EPA-HQ-RCRA-2011-0392-0267. For instance, 

State regulations require that structural fill proposals must submit a notice to NC DENR and be constructed safely to 
I. CCR Proven Damage Cases December 2014

89

Technology got special permission from the NC Division of Waste Management to also use ash from 

Cogentrix’ Kenansville facility for the residuals of a boiler fuel mix of coal and shredded tires (80:20), 

which contain arsenic at higher levels than the coal ash alone.386

CCR was placed only one foot above the water table and into a wetland, contaminating off-site 

groundwater and causing off-site CCR dust impacts to adjacent property. In 2002, the owner determined 

that as much as seven feet of standing water was present in the bottom of the CCR fill.

387 A site 

investigation report in 2003 demonstrated that groundwater existed throughout the entire fill area. 

EIP (2010) indicates that the primary EPA Maximum Contaminant Level (MCL) for lead and arsenic was 

exceeded onsite, as well as in offsite groundwater down-gradient of the fill site. EIP (2010) also notes 

sulfate exceeded the North Carolina Code 2L Groundwater Standard both onsite and offsite.388

Impact and Damage Claims: EIP (2010) mentions that a NC DENR inspection in the mid-1990s 

found that CCR had been placed too close to surface water, to the seasonal high groundwater table, and to 

the property line, all of which were in violation of the approved plan. In August 2001, the NC DENR 

determined that coal ash had been placed into a wetland on site.389

Evaluation against Proven Damage Criteria390

 

prevent erosion. They can’t be put within 50 feet of a wetland or stream, within 100 feet of a drinking water source, 

and within 2 feet of the seasonal high groundwater table.

Addressing structural fills built in North Carolina prior to 1994, Ellen Lorscheider, planning and programs 

branch head of the solid waste section within NC DENR, said “When they said they had an end use, they didn’t have 

an end use – it was a form of disposal. There was abuse of our regulations – the coal was a disposal site they called 

structural fill” (Newsobserver, 2014).

386 Facing South (2010). TCLP-leachable arsenic of the combustions residuals of this fuel mix is approximately 40 

percent of the hazardous threshold of 5.0 mg/L. The blend contained also high levels of zinc. The approval letter 

also required that the setback from any property boundary be increased from 25 to 100 feet; quarterly TCLP analysis 

of a suit of RCRA metals; and suggested one down-gradient monitoring well to be installed at any site receiving 

10,000 or more cubic yards of Tire Derived Fuel ash.

387 In its comment to the proposed CCR rule’s docket, EPA-HQ-RCRA-2009-0640-9951, Full Circle Solutions, Inc. 

claims that at the time the project began construction, the groundwater elevation was determined and the project was 

designed in accordance with the State of North Carolina guidelines. As verified by a qualified hydrogeologist after 

construction began, CCRs were placed above the groundwater elevation. In the midst of construction, two 

hurricanes flooded the area including this site. The underlying soils and the earthen berms surrounding the CCR are 

dense, low permeability clays which resulted in the trapping of stormwater and/or groundwater in the CCR fill with 

no effective means of escape.

388 Lead concentrations were as high as 0.93 mg/L, more than 6 times the MCL; and arsenic concentrations were as 

high as 0.068 mg/L, nearly 7 times the MCL. In January 2008 (according to NC DENR: EPA-HQ-RCRA-2011-

0392-0267, in 2009), lead was measured at more than twice the MCL in off-site groundwater down-gradient from 

the ash, and arsenic and sulfate levels also exceeded MCLs in off-site groundwater. 

389 In its comment to the proposed CCR rule docket: EPA-HQ-RCRA-2009-0640-9282, NC DENR conceded that 

the damage assessment for the Swift Creek site as portrayed in EIP (2010) “appears essentially accurate.”

390 ICF (2010).

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels 

(MCLs) or other health-based standards 

measured in groundwater at sufficient 

distance from the waste management unit to 

 Offsite groundwater data exceeded the primary EPA MCLs 

for lead and arsenic, and the North Carolina Code 2L 

Groundwater Standard for sulfate. 
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Other Considerations: According to a 2006 NC DENR Compliance Order, the NC DENR collected 

coal ash samples in 2004 from the power plants where the ash at Swift Creek originated, and found 

“elevated levels of lead, arsenic, and sulfates.”391 This suggests that the constituents found in the 

groundwater at Swift Creek are related to the ash it received from these power plants. 

Resolution: A Notice of Violation (NOV) was issued on April 4, 2002 for failure to bring the coal ash 

fill area in compliance with the original plan for waste placement. The facility operators agreed to install 

groundwater monitoring wells in 2005, which confirmed suspicions that the ash was percolating 

contaminants. By then the site contained 134,000 cubic yards of ash.392 A Compliance Order (CO) was 

issued on September 15, 2006, and a $4,000 penalty was assessed. The CO required that the nature and 

concentration of constituents in the groundwater and surface water be determined, the horizontal and 

vertical extent and rate of migration of contamination were also to be determined, and a dewatering plan 

to be submitted. A subsurface drainpipe corrective action system was installed in January 2008 to 

intercept groundwater and to lower groundwater elevation in contact with the CCRs. A July 2013 

groundwater monitoring report393 said the eight water samples showed no contamination of coal ash 

chemicals in deep groundwater monitoring wells. On May 16, 2014, NC DENR gave the site’s operators 

90 days to come up with corrective measures pertaining to the shallow groundwater.394

ICF (2010) Rationale: Proven damage. <Groundwater exceedances of the primary EPA MCL for 

arsenic and lead have been found on site and off site. The North Carolina DENR issued a NOV and 

 

391 In an October 24, 2004 letter to Full Circle Solutions’ CEO, NC DENR addressed groundwater exceedances 

revealed in the July 2004 (in EPA-HQ-RCRA-2011-0392-0267, NC DER claims that the analysis actually occurred 

in June 2004) Sherrill’s Environmental report Groundwater Analysis Swift Creek Project Highway 301, prepared for 

ReUse Technology, Inc. the report revealed both arsenic and lead in groundwater sample from MW-1S at 

concentrations of 0.028 mg/L and 0.068 mg/L, respectively (the MCL of arsenic and lead allowed in groundwater is 

0.010 mg/L and 0.015 mg/L, respectively). Sulfate was recorded at the same well at concentration of 490 mg/L, 

while its SMCL is 250 mg/L. NC DENR required an assessment monitoring study plan for determining the vertical 

and horizontal extent of the contamination in preparation for putting in place remedial measures. Review of 

Groundwater Analysis, Full Circle Solutions, Inc.:

http://www.southernstudies.org/images/sitepieces/swift_creek_groundwater_ltr.pdf

392 Newsobserver (ibid).

393 By Sherrill Environmental, Durham, N. Carolina.

394 Newsobserver (ibid).

indicate that hazardous constituents have 

migrated to the extent that they could cause 

human health concerns

 Onsite groundwater data exceeded the primary EPA MCLs 

for lead and arsenic, and the North Carolina Code 2L 

Groundwater Standard for sulfate.

Criterion 2: Where a scientific study 

provides documented evidence of another 

type of damage to human health or the 

environment (e.g., ecological damage)

 NC DENR determined in 2001 that coal ash had been 

placed directly into a wetland on site.

Criterion 3: Where there has been an 

administrative ruling or court decision with 

an explicit finding of specific damage to 

human health or the environment

 NC DENR issued a Notice of Violation in 2002 for failure 

to bring the fill area into compliance with an original plan 

for waste placement. A Compliance Order was 

subsequently issued in 2006, which included a fine and a 

requirement to delineate the nature and extent of 

groundwater sand surface water contamination. 
I. CCR Proven Damage Cases December 2014

91

subsequent Compliance Order to delineate groundwater and surface water contamination; however this 

Order did not have an explicit finding of specific damage to human health or the environment.>

References

Dominion (2014): Hopewell Power Station. Accessed Online August 2014.

https://www.dom.com/about/stations/fossil/hopewell-power-station.jsp

Dominion (2014a): Chesapeake Energy Center. Accessed Online August 2014.

https://www.dom.com/about/stations/fossil/chesapeake-energy-center.jsp

Highstar Capital (2014): North Carolina Power Holdings, LLC. Accessed Online August 2014.

http://www.highstarcapital.com/investment.php?id=32

Newsobserver (2014): Rural NC sites become dumping grounds for unwanted coal ash. 

Newsobserver.com, May 22, 2014. Accessed Online November 2014.

http://www.newsobserver.com/2014/05/22/3881617/rural-nc-sites-become-dumpgrounds.html#storylink=cpy

RockyMount (2013): Rocky Mount: Area Driving Trail. Accessed Online August 2014.

http://www.rockymounttravel.com/tours-driving.html

EIP (2010): Out of Control: Mounting Damages from Coal Ash Waste Sites, Thirty-one New Damage 

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #14. The 

Environmental Integrity Project and EarthJustice. February 24, 2010. Accessed Online September 2013.

http://www.environmentalintegrity.org/news_reports/news_02_24_10.php

Facing South (2010): ‘Dumpsites in Disguise’, Facing South, the Institute for Southern Studies, May 27, 

2010. Accessed Online November 2014.

http://www.southernstudies.org/2010/05/dumpsites-in-disguise.html

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix B, Case #14. ICF, 10/2010.

NC DENR, solid waste database (Jan. 25, 2010). Accessed Online October 2010. 

www.wastenotnc.org/sw/swpenalties.asp

Triangle Business Journal (2008): Coastal Carolina Clean Power to spend $14M for biomass plant. 

Triangle Business Journal, 19 May, 2008. Accessed Online August 2014.

http://www.bizjournals.com/triangle/stories/2008/05/19/newscolumn1.html

PR18. Conesville Fixed FGD Sludge Landfill, American Electric Power (AEP),395 Ohio 

Type: FGD Landfill and Associated FGD Sludge Pond.

 

395 The FGD sludge management system was the first of its kind in operation: it was originally owned/operated by 

Columbus and Southern Ohio Electric Company (EPRI, 1984).
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Description: American electric Power’s Conesville, Ohio Power Plant396 used an unlined FGD Sludge 

landfill with a 50-acre footprint between January 1977 and October 1988. While active, the landfill 

received primarily fixated scrubber sludge.397 Groundwater impact was first detected in 1979/80. The 

current landfill was opened in 1987 and expanded in 1993.398 AEP’s Conesville Plant is presently using 

some of its FGD to neutralize acid mine drainage emanating from an adjacent, abandoned open pit coal 

mine.399 Much of the Plant’s CCRs are still wet-managed. 400

The landfill, as well as an adjacent fly ash surface impoundment401 directly up-gradient of the FGD 

landfill, are located east of the Muskingum River adjacent to the floodplain. The site is underlain by about 

10 feet of alluvial sediments and permeable glacial outwash402 (silts, clays, and sands). Bedrock likely 

comprises shale, siltstone, and limestone of the Waverly (Upper-Mississippian age) and Maxwell (LowerMississippian age) formations.403

 

396 According to GenerationHub (2012), the 1,891 MW Conesville Plant comprises four active generation units 

(with in-service dates): Unit 3: 162 MW nameplate capacity, (1962), Unit 4: 842 MW (1973), Unit 5: 444 MW 

(1976), and Unit 6: 444 MW (1978). Cyclone-boiler Units 1 and 2, with 125 MW capacity each, were shut down in 

2005 due to corrosion fatigue. According to AEP (2011), on June 9, 2011, AEP announced that, based on impending 

EPA regulations as proposed, AEP’s compliance plan would retire nearly 6,000 MW of coal-fueled power 

generation. This would include pulverized coal boiler (PCB) Unit 3, to be retired by Dec. 31, 2012, whereas PCB 

Units 5 and 6 would continue operating with retrofits. According to EPA Minefill Site Visit (2002), for the cyclone 

units, the ratio between bottom ash and slag vs. fly ash is approximately 80:20. For the PCB units, the bottom 

ash/fly ash ratio is approximately 20:80.

397 Namely, Poz-O-Tec, an FGD sludge mixed with fly ash and lime to stabilize potential contaminants. Poz-O-Tec 

was developed by Conversion Systems, Inc. (CSI, formerly known as IU Conversion Systems, Inc.) The FGD 

sludge is generated by the wet scrubbers of Units 5 and 6. FGD waste from Units 5 and 6 is approximately 3 percent 

solids as generated. It is pumped to thickeners that raise it to about 30 percent solids, then to vacuum filters that raise 

it to 45 percent solids. The FGD waste is then mixed with dry fly ash and some lime and placed in a storage pile for 

two to four days before it is transported to the facility’s landfill, approximately 3 miles from the plant. According to 

EPA Minefill Site Visit (ibid), the current landfill was constructed in a valley between old mine highwalls. It is 

regulated as a Class III landfill, as are AEP’s other CCR landfills in Ohio.

398 According to EPA Minefill Site Visit (ibid), all sections of the landfill are composite-lined and capped, although 

the environmental controls on the older section have a slightly different design than those on the expansion; e.g., the 

older section is equipped with a toe drain only, while the expansion includes a complete leachate collection system 

with a sand layer, lateral drains, etc. Leachate from the landfill requires treatment only to lower the pH before it can 

be discharged under the facility’s NPDES permit limits. The landfill is equipped with a ground-water interceptor 

system that diverts ground water into the old mine sites. This keeps the mine flooded to prevent acid mine drainage 

generation and the formation of hydrostatic pressure on the landfill liner.

399 According to AEP (2012), eliminating the acid mine drainage involves using approximately 1.6 million tons of 

FGD material produced by the Conesville scrubbers to backfill the 100-foot highwall.

400 According to EPA Minefill Site Visit (ibid), bottom ash and slag is slurried and pumped to dedicated, on-site 

surface impoundments. Fly ash from Units 4 through 6 can be slurried and pumped to dedicated surface 

impoundments or managed dry, whereas fly ash from Units 1 through 3 has been always managed dry. The on-site 

surface impoundments are dredged on a nearly continuous basis and the dredged solids are transported to the 

facility’s landfill.

401 According to Lockheed Martin (2010), the fly ash Pond Complex, commissioned in the 1950s and regulated by 

EPA NPDES Permit No. OH0005371 is unlined, occupying some 82-acres. There are four primary areas within the 

Ash Pond Complex: the Fly Ash Storage, Fly Ash Pond, Bottom Ash Pond, and Clearwater Pond. Splitter dikes 

constructed within the complex between 1976 and 1981 separate these areas. The splitter dikes were constructed 

from bottom ash and boiler slag placed above ash sediment. The Fly Ash Pond has been further divided by interior 

dikes constructed from bottom ash.

402 EPRI (1984).

403 Lockheed Martin (ibid); EPA (2007); and Islas (2006).
I. CCR Proven Damage Cases December 2014

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Impact: Thirty-four monitoring wells were installed (two up-gradient) to monitor the effectiveness of a 

Poz-O-Tec fixation process404 to stabilize and thus immobilize potential contaminants. The stabilized 

FGD sludge was deposited next to the fly ash pond.

405 The emergency FGD sludge pond, operated since 

January 1977 in conjunction with the sludge management system, received filtrate water produced during 

vacuum filtration of the raw thickened FGD sludge. This filtrate is believed to be the principal source of 

cadmium concentrations in local groundwater which slightly exceeded the respective PDWS limit. After 

20-months of operating while unlined, the emergency FGD sludge pond was lined with fixed sludge. 

However, the liner was disrupted whenever unfixed sludge which had collected in the pond was 

excavated using a front-end loader, and the damage was not always repaired before the pond was 

reused.406 Based on two sets of water quality data between February 1979 and July 1980, lead and 

chromium appeared to be migrating offsite.407 In the first sampling campaign, lead exceeded the primary 

drinking water standard (PDWS) in two on-site wells, and in three off-site wells was up to twice the 

PDWS. Samples from on-site wells in the first set of data also showed increases above background levels 

in the secondary drinking water standards (SDWS) of calcium, magnesium, total dissolved solids (TDS), 

sulfate, and iron.408

In the second set of data, samples from on-site wells showed increases in calcium, magnesium, TDS, and 

sulfate relative to the first set of data. Exceedances of the PDWS for arsenic, cadmium, chromium, and 

selenium were found in on-site wells and exceedances of the PDWS for chromium (up to sixteen times 

the PDWS) were found in three off-site wells. Lead was not detected in any of the second set of samples. 

EPRI409 presents tabulation of exceedances in groundwater based on data provided by AES from 1981 

through 1984. According to EPRI, these data indicate that arsenic concentrations met standards in effect 

at the time of monitoring, although some concentrations were higher than the current MCL (0.01 mg/L); 

and that mercury was detected in excess of the MCL once in an up-gradient well and once in a well 

located within an ash pond. Most other wells reported non-detects.

In its comment to the docket, AEP410 states that shortly after the 1979/1980 water quality data sets were 

analyzed, the filtrate from the FGD sludge stabilization process, believed to be a possible source of 

cadmium, was routed to the thickener tanks. Subsequent groundwater monitoring, performed for an 

additional six years, indicated that only one of 482 samples for arsenic exceeded the PDWS; only six of 

520 samples exceeded the PDWS for chromium, and five of the six exceedances occurred on one of the 

25 sampling events. Seventeen of the 582 samples exceeded the PDWS for lead, and all these 

exceedances occurred on three of the 25 sampling events. No sample exceeded the cadmium PDWS.411

 

404 According to EPRI (1984), additional monitoring wells were installed under Phase II of the FGD sludge fixation 

project, hence the statement “there are approximately 55 monitoring wells for the landfill, monitoring three 

underlying aquifers” in EPA Minefill Site Visit (ibid).

405 According to EPRI (1984), in 45 laboratory tests the logarithmic average permeability of the field Poz-O-Tec 

samples was 6.07 x 10-6cm/sec. Note that this permeability falls short of EPA’s proposed Guidelines for Landfill 

Disposal of Solid Waste that a liner with permeability of 1 x 10-7cm/sec should be used to control leachate when 

natural hydrogeologic conditions only provide minimum capability for amelioration of impacts from leachate on 

groundwater, as is the case at the Conesville Site.

406 EPRI (1984).

407 Ohio’s comment to the proposed CCR management rule: EPA-HQ-RCRA-2009-0640-8226. The impact on 

groundwater quality of the fly ash pond is documented in EPRI (1984).

408 EPRI (1984).

409 EPRI (2010).

410 American Electric Power, Comment to the proposed CCR rule’s docket EPA-HQ-RCRA-2009-0640-6851. 

411 According to EPA Minefill Site Visit (ibid), the facility uses chloride as an indicator parameter for monitoring. 

Chloride is observed in the leachate at about 800 mg/L, compared to single digit concentrations in the aquifers. AEP 

claims that in the history of the landfill, only one well has had a statistically significant excursion from background 
I. CCR Proven Damage Cases December 2014

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Resolution: Late in 1988, a two-foot clay cap with 6” topsoil cover was placed on the landfill, and the 

landfill has since been inactive. The utility continued voluntarily monitoring groundwater in the 1980s. 

No monitoring is presently required, but post-closure inspections continue.412

AEP contends413 that based on (i) the subsequently improved groundwater monitoring data record cited 

above, (ii) EPA’s statement414 on the limited potential for off-site migration of contaminants, and (iii) the 

fact that the landfill has been capped for almost 23 years, this site should be removed from EPA’s list of 

damage cases. EPRI415 seconds this claim, arguing that groundwater flow direction is toward Muskingum 

River, and that there are no recipients along the contaminants’ migration path. 

Postscript: This site is one of seven cited in the 1988 Report to Congress that Dames and Moore, in their 

1982 study for USWAG, identified as having a potential for adverse environmental and health effects. 

EPA (2007) addresses the considerations underlying EPA’s decision in its May 2000 Regulatory 

Determination to reject it as a damage case, and the reasons for subsequently reinstating it as a potential 

damage case. 

Evaluate against Proven Damage Criteria: In reference to EPA’s damage case screening criteria, the 

migration of two primary MCLs (lead and chromium) off-site qualifies the Conseville Fixed FGD Sludge 

Landfill as a proven damage case.

References

AEP (2012): FGD Project at Conesville Coal Prep Plant. Accessed Online June 2012. 

http://www.aep.com/about/coalCombustion/currentProjects/FGD.aspx

GenerationHub (2012): AEP shuts Conesville coal wash plant, has it up for sale. Barry Cassell, April 5, 

2012. Accessed Online June 2012.

http://generationhub.com/2012/04/05/aep-shuts-conesville-coal-wash-plant-has-it-up-for

AEP (2011): AEP Shares Plan for Compliance with Proposed EPA Regulations. American Electric 

Power, June 9, 2011. Accessed Online August 2014.

https://www.aep.com/newsroom/newsreleases/?id=1697

EPRI (2010): Evaluation of Coal Combustion Product Damage Cases Vo. 2: Case Summaries. EPRI Final 

Report 1020554, Sept. 2010, PP. 2-145 to 2-146. Accessed Online July 2012

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%20

Product%20Damage%20Cases

Lockheed Martin (2010): Assessment of Dam Safety Coal Combustion Surface Impoundment (2010), 

(Task 3) Final Report, AEP, Conesville Generating Station, Conesville, Ohio. Lockheed Martin, 

February 15, 2010. Accessed Online July 2012. 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/aep-conesvl-final.pdf

 

concentrations, and that after assessment monitoring, this excursion was not clearly attributable to a release from the 

landfill, and the facility has returned to detection monitoring.

412 However, according to EPA Minefill Site Visit (ibid), since its closing in 1988, the old FGD landfill has been 

subjected to post-closure monitoring under OEPA regulations.

413 American Electric Power, Comment to the docket, ibid.

414 EPA (2007).

415 EPRI (2010).
I. CCR Proven Damage Cases December 2014

95

EPA (2007): Coal Combustion Waste Damage Case Assessments, Case # 63. Docket EPA-HQ-RCRA2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007

Islas (2006): Geological Report of the Appalachian Basin in Kentucky, Joseph L. Islas, 

June 28, 2006. Accessed Online June 2012.

http://www.asenergyconsulting.com/PDF/Appalachian_Basin_Report.pdf

EPA Minefill Site Visit (2002): U.S. EPA Site Visit Report Coal Combustion Waste Minefill 

Management Practices - Ohio - Draft Final Report, August 28, 2002. Accessed Online April 2013.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/sites/oh-visit.pdf

EPA (1988): Report to Congress (RTP) on Wastes from the Combustion of Coal by Electric Utility Power 

Plants (EPA530-SW-88-002), US EPA, February, 1988. Accessed Online July 2012 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/coal-rtc.pdf 

EPRI (1984): Monitoring the Fixed FGD Sludge Landfill--Conesville, Ohio. EPRI, Project 1406-2 Final 

Report, October 1, 1984. Accessed Online November 2014.

http://www.epri.com/search/Pages/results.aspx?k=Monitoring+the+Fixed+FGD+Sludge+Landfill--

Conesville%2C+Ohio&r=mptypecategory%3AAREBVGVjaG5pY2FsIFJlc3VsdHMObXB0eXBlY2F0Z

WdvcnkBAl4iAiIk,mptabresults%3AARABUmVzZWFyY2ggUmVzdWx0cwxtcHRhYnJlc3VsdHMBAl

4iAiIk

PR19. Bruce Mansfield Power Station’s Little Blue Run Surface Impoundment, 

FirstEnergy, Shippingport, Greene Township, Beaver County, Pennsylvania and Grant 

District, Hancock County, West Virginia

Type: Surface Impoundment.

Background and Description: The Bruce Mansfield Power Station (BMPS), located in Shippingport, 

Pennsylvania, has three generation unit with a total capacity of 2,741 MW and is the fourth largest power 

plant in the U.S.416 The BMPS conveys, through a 7.5 miles underground pipe, up to 4 million gallons per 

day of approximately 30 percent solid coal ash and FGD slurry to the Little Blue Run surface 

impoundment (LBR).417 The LBR impoundment is located west of the BMPS, about 0.6 miles south of 

the Ohio River. 

Permitted in 1974 and commissioned in 1977, the LBR impoundment is unlined418 and covers an area of 

approximately 967 acres across both Pennsylvania (about 60 percent of the permit area) and West 

 

416 Bruce Mansfield produces about 550,000 tons of fly ash and 98,000 tons of bottom ash per year: FirstEnergy 

Little Blue Cleanup Nearly Years Away: http://www.timesonline.com/news/local_news/firstenergy-little-bluecleanup-nearly-years-away/article_e8f6198f-951b-5b95-a7e0-78fdd44eb454.html.

417 According to PA Geology (2009), the plant uses a patented oxidation process called Forced Oxygen to Gypsum 

(FOG), to change the calcium sulfite hemihydrate from the wet scrubbing process into synthetic gypsum in the form 

of calcium sulfate dihydrate (CaSO4·2H2O). It is then dewatered and converted in a National Gypsum Company 

facility on the premises into a commercial quality wallboard.

418 In accordance with applicable law, PADEP has granted this site a waiver of the Pennsylvania residual waste 

regulations that require liners, leachate collection systems, and siting restrictions. The impoundment was thereby 

also exempted from the requirement to retrofit for a 25-year, 24-hour flood (EIP, 2010a, p. 171.) The liner 

requirement was waived upon promulgation of Pennsylvania’s coal ash regulations in 1992, and again with the 

expansion of the impoundment in 2006, for which FirstEnergy secured a “demonstration” permit, to determine 
I. CCR Proven Damage Cases December 2014

96

Virginia (the remaining 40 percent).

419 The 400 foot high earth and rock dam with an impervious core 

blocks the Little Blue Run near its confluence with the Ohio River. With a storage volume of about 

65,000 acre-feet, a maximum hydraulic head of 388 feet, and about 100 million tons of contained fly ash 

and scrubber sludge,

420 this impoundment is the largest of its kind in the U.S.421

The site is blanketed by a less than 10 feet-thick mantle of in situ soil on the hilltops and hillsides, while 

up to 55 feet-thick alluvial and colluvial soils occur in and near the valley bottom. Comprising

primarily a mixture of silt, sand, gravel, and rock fragments, these soils are for the most part saturated 

due to the high ground water level within the valley bottom.422 The soils are underlain by a 

Pennsylvanian-age bedrock sequence of the Alleghany and Glenshaw Formations, several hundred feet 

thick, of cyclical shale, siltstone, claystone, and sandstone, with thin coal horizons, paleosols, and 

carbonaceous shale.423 A series of small-scale mines for domestic use of coal penetrated as far as 110 

feet into the abutments.424 Groundwater and surface water have been monitored both onsite and offsite. 

The geohydrologic gradient is northward, towards the Ohio River. As of July 2013, LBR features an 

extensive water monitoring program that includes more than 50 groundwater wells, more than 30 

surface monitoring points and more than 30 domestic wells. Sampling results are submitted to PADEP 

on a quarterly basis.425 

Impact and Damage Claims: Groundwater: EIP (2010a) claims that levels of arsenic, barium, 

cadmium, fluoride, lead, and turbidity exceeded primary EPA MCLs in both onsite and offsite 

groundwater monitoring wells and in multiple off-site residential drinking water wells, prompting several 

property buyouts by FirstEnergy. In addition, aluminum, chloride, iron, manganese, sulfate, pH, and total 

dissolved solids (TDS) exceeded secondary EPA standards (SMCLs) in both onsite and offsite 

groundwater. 

In 2006, PADEP permitted an increase in the height of the dam for the impoundment to accommodate 

more fly ash and scrubber sludge from the BMPS.426 The resulting increase in head pressure has allegedly 

 

whether specific uses of a slurry of scrubber sludge and ash, as well as geo-tube technology, could stabilize the 

waste site and extend the life of the unit. (EIP, 2010a, page 170.) The site was expanded in 2006, and, including the 

buffer areas owned by FirstEnergy, currently occupies over 18 percent of the landmass of Greene Township, in 

addition to an extensive area in West Virginia. In February 2011, a new, 264-acre coal-ash disposal impoundment 

expansion (the ‘Little Blue East’ site) was proposed in Greene Township, adjacent to the current impoundment.

419 According to the Bureau of Waste Management, Pennsylvania’s Department of Environmental Protection 

(PADEP), Form 13-A: Modification to Solid Waste Disposal and/or Processing Permit for Solid Waste Disposal 

Permit No. 300558 (issued October 11, 2005), the permitted area is 1,695 acres.

420 EPA (2009). According to FirstEnergy, the total CCR material placed since its inception is approximately 118 

million cubic yards; Little Blue Run at a Glance: 

(https://www.firstenergycorp.com/content/dam/littlebluerun/files/Little%20Blue%20Run%20at%20a%20Glance_06

.2013_V3.pdf).

421 FirstEnergy holds various permits for the site including NPDES discharge permits (PA0027260) for the outfalls 

as well as a Pennsylvania Clean Streams Law permit (PA0027481) and a Solid Waste Permit (300558). For a recent 

aerial view of the impoundment area, see virtual pages 321 and 322 in FirstEnergy Closure Plan (2013).

422 CHA (2010).

423 Martino (2004) and Thiers et al., (1976).

424 CHA (ibid): The deeper mines were backfilled with grout and the shallow mines were cleaned of loose material 

and filled with sand bags prior to the placement of backfill.

425 FirstEnergy Facts and History:

https://www.firstenergycorp.com/content/fecorp/environmental/environmental_stewardship/by-productdisposal/LittleBlueRunInfo/facts_and_history.html

426 Comment to the CCR proposed rule docket: EPA-HQ-RCRA-2009-0640-6315.
I. CCR Proven Damage Cases December 2014

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pushed the groundwater contamination farther off-site.427 This resulted in levels of arsenic, antimony, 

hexavalent chromium, lead, boron, cadmium, thallium, selenium, and other constituents in off-site springs 

and seeps in excess of Pennsylvania’s WQSs. PADEP acknowledged428 that the flow in several preexisting springs down-gradient from the impoundment has increased in the recent past and the springs are 

impacted (elevated calcium, chloride, and sulfate) by the LBR impoundment. At least 22 private wells 

have now been contaminated above MCLs, SMCLs, and constituents with health advisories.429

Arsenic was reported in 1993 at 0.021 mg/L in a private well (at that time, below the Federal MCL of 

0.05 mg/L); six additional analyses of that well (1994-2001) showed a maximum level of 0.005 mg/L, 

and some non-detects. However, FirstEnergy claims that because the well did not contain other ‘CCR 

constituents’, arsenic might have been derived from soils.430 Elevated levels of arsenic continue to be 

detected in six monitoring wells and three surface water points. Excessive cadmium levels was observed 

in nine wells (with a maximum level of 850 μg/L, or 170 times the MCL), and of lead – in 11 wells (with 

a maximum level of 2,690 μg/L, or 179 times the MCL).

Arsenic was reported in groundwater collected in eight monitoring wells in 2006 (first year of regular 

arsenic analyses at the site’s 42 monitoring wells). FirstEnergy claims, however, that many of these 

detections were not replicated in subsequent samples from the same wells, and attributes the original 

records to laboratory errors and statistical anomalies.431 FirstEnergy concedes that, based on the past 4.5 

years of arsenic data, one groundwater well 150 feet from the LBR impoundment (MW-16A) contains 

elevated arsenic, but other wells immediately down-gradient have no arsenic exceedances. FirstEnergy 

also claims that alleged fluoride, lead, and total suspended solid (TSS) exceedances, as well as SMCL 

exceedances of chloride, iron, manganese, and sulfate, are either due to natural sources (e.g., coal seams, 

soils, dissolution of fresh-water rocks in the underlying geologic sequence) or to brine impacts from 

historic oil and gas activities in the area, and that exceedances of TSS are due to dry-up of wells during 

purging. According to PADEP, cadmium was reported at levels above MCL only in nine (out of 414) 

monitoring well samples, and four of these contain groundwater representative of background conditions; 

and barium and lead in the LBR impoundment’s supernatant are well below the corresponding MCLs, 

indicating that the impoundment is not the source term.

A recent private well water quality study432 collected 85 samples from 81 different community resident’s 

wells surrounding the LBR impoundment. These wells are ordinarily located further away from the LBR 

 

427 According to CHA (ibid), page 78 and page 6 of Appendix A, respectively, the evidence is equivocal: (i) the 

January 2009 PADEP inspection report noted that the valley below the saddle dam has been impacted by leachate 

and there is a pump return system for this water; (ii) according to the EPA-sponsored inspection in October 2009, 

seepage reached a peak in 1991 at 650 gallons per minute (gpm), and has since receded to about 300 gpm. However, 

the July 27, 2012 Consent Decree lists several sizeable, contaminated seeps as subjects for a mandatory assessment 

by the utility; and see the next footnote. 

428 Comment to the 2011 NODA: EPA-HQ-RCRA-2011-3009-0201. Also, a response letter by Michael G. Forbeck, 

PADEP’s SW Regional Office, to Richard I. Sprecker, FirstEnergy Generating Corp., in response to complaints by 

two residents of Lawrenceville, West Virginia, about higher than normal spring flows and increased wet areas on 

their properties (attachment to an email message from Lisa Evans, EarthJustice, to Stephen Hoffman, EPA/OSWER, 

March 13, 2012).

429 FirstEnergy countered (Comment to the NODA docket EPA-HQ-RCRA-2011-0392-0201) by presenting (i) a list 

of 40 residential well sites, within 500 feet to 1.5 miles from the LBR impoundment, where sampling - as of August 

2004 - has not detected any arsenic; and (ii) September 30, 2010 testing results of several private wells in 

Lawrenceville, West Virginia, with non-detects for primary MCLs, including arsenic.

430 Comment to the 2011 NODA: EPA-HQ-RCRA-2011-0392-0201.

431 Comment to the NODA, ibid.

432 Michanowicz (2011): Samples were taken on November 1, 2, 3, and 22 of 2010.
I. CCR Proven Damage Cases December 2014

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impoundment as compared to PADEP’s groundwater monitoring wells.433 The Study identified (i) seven 

‘verified impact wells’ pertaining to PADEP’s 3rd Quarter 2008 monitoring, immediately west, north, 

and northeast of the LBR impoundment; (ii) four samples that exceeded the SMCL for total dissolved 

solids (TDS);434 (iii) sulfate, while below the SMCL, showed a significant down-gradient increase;435 (iv) 

only one sample (11.5 μg/L) exceeded the USEPA primary MCL for arsenic; and (v) other wells with 

SMCL exceedances (29 samples of manganese,436 14 samples of iron, two samples of aluminum , and one 

sample of fluoride) are so located with respect to the hydraulic gradient as to rule out the LBR 

impoundment as the source term.

PADEP437 concedes that (i) its 1994 letter to the BMPS stated ‘this surface impoundment is affecting 

groundwater over a large area with multiple aquifers’ (PADEP attributes this to the unlined 

impoundment); (ii) In a 1996 COA, Penn Power, FirstEnergy’s predecessor, admitted that ’existing 

groundwater monitoring data indicate light groundwater impacts from LBR supernatant...of SMCL or 

indicator parameters (sodium, calcium, chloride, and sulfate); and (iii) according to FirstEnergy’s 2007 

Annual Report, 24 wells were labeled as ‘supernatant impacted’ (containing elevated levels of sulfate, 

sodium, calcium, chloride, and magnesium.) The data of FirstEnergy’s 2007 Annual Report are supported 

by some of the findings of the recent drinking water well study (elevated calcium, chloride, and sodium in 

down-gradient wells).438

FirstEnergy submits439 that at the EPA public hearing in Pittsburgh,440 a number of people commented 

that they had drinking water well problems and groundwater concerns suggesting that LBR was the cause. 

The utility claims that local well water analyses had been provided to EPA by both FirstEnergy and 

PADEP which demonstrate that the LBR impoundment is in compliance with the requirements of the 

permit and does not pose a threat to the public or the environment. According to FirstEnergy, EIP’s 

(2010a) claims addressed water wells that could not be impacted by the LBR impoundment because they 

were up-gradient or otherwise geologically separated from the impoundment, or were impacted by fecal 

contamination likely associated with poor well installation in an area used by cattle.

Surface water: Levels of arsenic, antimony, boron, cadmium, hexavalent chromium, lead, selenium, and 

thallium exceeded Pennsylvania’s water quality criteria (WQC) in Mark’s Run and other onsite and offsite surface water sources.441 Additionally, several constituents exceeded criteria continuous 

concentrations (CCCs) and criteria maximum concentrations (CMCs). FirstEnergy claims that EIP’s 

(2010a) allegations about an offsite surface water sample with eight arsenic readings (2003-2010) as high 

as 0.028 mg/L were actually recorded for surface water sample point SW-5, a sample of the supernatant 

 

433 In PADEP’s 3rd Quarter 2008 monitoring well sampling, PADEP’s monitoring well constituent levels were 

higher on average for most metals and salts sampled.

434 The down-gradient average is 2,200 ppm, as compared to an up-gradient average of 560 ppm.

435 The down-gradient average is 241 ppm, as compared to an up-gradient average of 6.25 ppm. 

436 The mean of 83 samples was 166.7 ppb. Highs were detected in residential wells south and southeast of the LBR

impoundment, whereas PADEP’s monitoring well highs are to the north, northeast, and southwest of the LBR

impoundment.

437 PADEP’s comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-3009-0201.

438 Michanowicz (2011).

439 Comment to the CCR proposed rule: EPA-HQ-RCRA-2009-0640-9880.

440 CCR Public Hearings (2010).

441 EIP (2010a). EIP also claims that FirstEnergy’s own monitoring reports reveal concentrations of boron at the 

Little Blue Run Stream surface water monitoring station location immediately downstream of the impoundment 

discharge (SW-3) higher than the chronic Pennsylvania water quality criterion for boron in all quarters between 

2006 and 2012. During this same time period, concentrations of boron even exceeded the acute Pennsylvania water 

quality criterion for boron at SW-3 in 9 of 22 quarters; and in the one quarter of available data for selenium from 

SW-3 in the last five years, selenium exceeded the chronic Pennsylvania water quality criterion.
I. CCR Proven Damage Cases December 2014

99

within the impoundment which is treated and discharged through an NPDES permit. Only one offsite 

monitoring point, spring S-31 at Mark’s Run was found to contain 0.011 mg/L arsenic, but, FirstEnergy 

claims that this spring emanates from the Bruch Creek coal seam. Finally, FirstEnergy contends that 

claims about onsite surface water that flow offsite and show arsenic and selenium that exceed WQC and 

antimony at levels that exceed CCC are not applicable, because these surface water monitoring points 

include supernatant within the impoundment, which should not be compared to DWSs. However, 

FirstEnergy does not challenge exceedances of selenium in SW-3.

EIP (2010a) cites numerous incidents that have occurred at or near the BMPS, including coal ash fugitive 

dust covering homes and properties,442 rotten eggs’ odor, and various unregulated discharge issues 

including 800 gallons of scrubber sludge, 100 gallons of CCR slurry, and discolored waters. Additionally, 

many permit violations have occurred at outfalls located around the site.

Evaluation against Proven Damage Criteria443

USWAG claims444 that this case does not meet the criteria of a damage case. 

 

442 Environmental News Service (2007); PennFuture (2012); and citizen complaints aired at the Arlington, Virginia 

(August 30, 2010) and Pittsburgh, Pennsylvania (September 21, 2010) proposed CCR’s rule public hearings.

443 ICF (2010a).

444 Comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211): “because the allegations do not contain 

any valid evidence of off‐site groundwater monitoring data or off‐site groundwater monitoring data showing 

exceedances of specified health‐based criteria; nor does it meet the criteria for a damage case to surface water 

quality because the allegations do not contain any valid evidence of exceedances of Federal water quality criteria.”

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels (MCLs) 

or other health-based standards measured in 

groundwater at sufficient distance from the 

waste management unit to indicate that 

hazardous constituents have migrated to the 

extent that they could cause human health 

concerns

 Onsite and offsite groundwater exceeded primary EPA 

MCLs for arsenic, barium, cadmium, fluoride, lead, and 

turbidity.

 Onsite and offsite groundwater exceeded EPA SMCLs 

for aluminum, chloride, iron, manganese, sulfate, pH, 

and TDS.

 Offsite wells have since been acquired by FirstEnergy.

Criterion 2: Where a scientific study provides 

documented evidence of another type of 

damage to human health or the environment 

(e.g., ecological damage)

 Onsite and offsite surface waters exceeded 

Pennsylvania’s WQCs, CCCs, and/or CMCs for arsenic, 

antimony, boron, cadmium, hexavalent chromium, lead, 

selenium, and thallium.

 Incidents have occurred near the site including coal ash 

fugitive dust covering homes, rotten eggs’ odor, and 

various unregulated discharge issues including 800 

gallons of scrubber sludge, 100 gallons of CCR slurry, 

and discolored waters.

Criterion 3: Where there has been an 

administrative ruling or court decision with an 

explicit finding of specific damage to human 

health or the environment

 PADEP has issued several NOVs concerning fugitive 

dust, discolored water from discharge, and groundwater 

contamination. 
I. CCR Proven Damage Cases December 2014

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Other Considerations:

 At least 22 private wells have been contaminated and acquired by FirstEnergy. The impacted 

residents have been supplied alternate drinking water. 

 There is no public water supply in Greene Township, where all residents rely on private wells.

Resolution: PADEP has issued a number of Notices of Violation (NOV) regarding fugitive dust, 

discolored water, groundwater contamination, and NPDES permit violations. In addition, in 2007, the 

Power Plant was sued by nearby residents due to violations of air emissions that resulted in documented 

health impacts, and the lawsuit was resolved in 2009 through a Partial Consent Decree.

Multiple unpermitted discharge violations lead to several enforcement actions, including: a NOV and 

$2,500 penalty for discharge of suspended solids (194mg/L) and pH (10.5) in violation of NPDES (July 

31, 1989); a NOV and $2,500 penalty for exceedances of NPDES permit discharge limits for TDS (194 

mg/L; maximum limit 60 mg/L) and pH 10.5 (maximum limit pH 9) into Mill Creek from Outfall 001

(1991); discharge of 800 gallon of scrubber sludge into the Ohio River from the LBR impoundment

(January 1994); a NOV for ‘fly ash sludge’ that was ‘disposed outside the permit’ (September 23, 2003); 

and a PADEP letter in response to elevated sodium and chloride levels, which indicate that a surface 

water point has been impacted by leachate from the impoundment (October 21, 2008).445

PADEP and FirstEnergy entered into a settlement agreement on June 21, 1994 for groundwater

contamination, and BMPS was required to provide an alternative water supply to a private residence; on 

December 20, 2007, PADEP required re-sampling of four wells with elevated arsenic. On January 31, 

2009, PADEP required a groundwater assessment, and according to FirstEnergy’s revised plan (July 6, 

2011) the cause for the elevated arsenic levels is being studied. On February 16, 2010, PADEP required 

re-sampling of 10 wells with elevated arsenic levels, but no comprehensive remediation plan was

required.

FirstEnergy has initiated a remedial plan for the impacted springs: two larger springs along the hillside of 

Mill Creek that have shown impacts are captured and pumped back to the LBR impoundment in 

accordance with a COA and are ultimately discharged under the NPDES permit; and a large spring, just to 

the northwest of the dam in West Virginia, is collected and routed into the impoundment’s NPDES 

discharge pipe that conducts flow to the Ohio River. FirstEnergy has supplied alternative drinking water 

to a few residents where samples showed changing wells’ water quality.446 Two owners were offered 

water treatment systems because of brine water in their wells, and another – in response to a (transient) 

increase of sulfate.

447 In addition, FirstEnergy has purchased at least 12 homes in Lawrenceville, West 

Virginia.448

 

445 According to Little Blue Run Regional Action Group (2012), “PADEP recognized already in 1994 that the 

Impoundment was polluting groundwater and springs, reminded FirstEnergy it had to predict water pollution would 

occur in the future, and suggested that various abatement techniques had not been properly evaluated” (letter from 

D.K. Hartner, PADEP, to Robert O. Johns, Penn Power Co., May 2, 1994). “Despite this realization, in 1997 

FirstEnergy obtained exemptions from PADEP’s normal requirements for an impermeable liner that would have 

served to prevent pollution reaching the groundwater.” (In the Matter of Pennsylvania Power Co., Consent Order 

and Agreement 7, September 25, 1997).

446 Albeit, according to FirstEnergy, “indicative of past oil and gas exploration”.

447 The increase of sulfate was attributed by FirstEnergy to an intersected coal seam.

448 Pa., W.Va. landowners sue FirstEnergy over Waste:

http://www.observer-reporter.com/article/20131014/NEWS04/131019654
I. CCR Proven Damage Cases December 2014

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On May 30, 2012, the Little Blue Run Regional Action Group issued an NOV and a Notice of Intent 

(NOI) to Sue FirstEnergy for violations of the CWA, Pennsylvania’s Clean Streams Law (CSL), EPCRA, 

and RCRA at the LBR Coal Ash Impoundment.449

On July 27, 2012, PADEP issued a Consent Decree against FirstEnergy,450 requiring, among others, 

groundwater assessment monitoring, a variety of measures for groundwater and surface water protection, 

provision of drinking water to residences impact by groundwater contamination, closure of the 

impoundment at the end of 2016, and a civil penalty of $800,000. The Consent Decree was issued 

pursuant to Section 7002(a)(1)(B) of RCRA,

451 to ensure that FirstEnergy’s disposal of solid waste in the 

 

449 Little Blue Run Regional Action Group (2012). According to the NOI, FirstEnergy is violating the CWA by 

discharging pollutants from Outfalls 021 and 022 in violation of the terms and conditions of its NPDES Permit;

violating RCRA by disposing of coal ash in a manner that may present an imminent and substantial endangerment to 

health and the environment; violating the CSL by discharging pollutants that have polluted and continue to pollute 

the groundwater and surface water of the Commonwealth of Pennsylvania; and violating EPCRA by failing to report 

releases of toxic chemicals from the LBR Impoundment and recycling of toxic chemicals at the Bruce Mansfield 

Plant. The NOI provides data to show that (i) the actual loadings of selenium to the Ohio River are at least 2.5 to 5.5 

times higher than the 1.7 pound/day that PADEP determined would cause or contribute to an impact on aquatic life 

or pose a substantial hazard to the environment; and that (ii) in down-gradient groundwater monitoring wells, about 

10 percent of the samples exceed the drinking water standard for arsenic, about 25 percent exceed the secondary 

drinking water standard for boron, over 40 percent exceed the secondary drinking water standard for chloride, about 

45 percent exceed the secondary drinking water standard for iron, and approximately 50 percent exceed the 

corresponding SMCLs for manganese and sulfate.

450 According to the issued 2014 Closure Plan, the Consent Decree was entered in the U.S. District Court for the 

Western District of Pennsylvania on December 14, 2012.

451 More specifically, the Consent Decree (PADEP v. FirstEnergy, 2012a) filed in federal court in Pittsburgh (W.D. 

Pa., No. 12-cv-01061-NBF) requires that FirstEnergy: (i) conduct quarterly reconnaissance within 3/4 of a mile in 

Pennsylvania and West Virginia surrounding the ultimate waste disposal limits of the Impoundment, to locate any 

and all seeps or springs which have developed as of or prior to such reconnaissance; (ii) sample newly identified 

seeps within 30 days of discovery for flow quantity and any of 33 specified parameters and constituents; (iii) submit 

to PADEP a quarterly report identifying all seeps and include current and historical sampling data and trend analyses 

for each seep, stream, water supply and monitoring well; (iv) within 30 days of receiving notice from PADEP, or 

FirstEnergy’s own determination (whichever occurs earlier), that a seep is or has become contaminated by the 

Impoundment, submit a written plan to PADEP describing the means by which FirstEnergy will manage such seep; 

(v) monitor drinking water wells as directed by PADEP and, for any and all impacted drinking water wells within 

one-half mile of the ultimate waste disposal limits of the Impoundment, restore the affected water supply at no

additional cost to the owner or replace the affected water supply with an alternate source; (vi) within no later than

two years following entry of the Consent Decree, provide, free of charge, an alternate supply of drinking water of 

like quantity and quality to the original supply to 17 addresses in Greene Township, Pennsylvania, and four in

Chester, West Virginia, that are listed in the Consent Decree, and to any other home with a drinking water well 

within a half-mile of the impoundment, if PADEP directs it to do so; (vii) by August 1, 2012, submit to PADEP and 

WVDEP plans and a schedule to address any further modifications or additions to the collection facilities in 

Lawrenceville, West Virginia, necessary to abate seeps contaminated by the Impoundment that flow into any surface 

stream; (viii) by February 1, 2013, submit to PADEP a report, signed and sealed by a Pennsylvania licensed 

Professional Engineer, on investigation measures to reduce or prevent groundwater impact (e.g., selective 

application of slurry walls and associated pumping facilities installed in peripheral locations to the Impoundment to 

limit or re-direct groundwater infiltration or contamination; cover/capping to prevent/minimize infiltration of 

precipitation; and the installation and permanent maintenance of a natural or synthetic liner between the 

uncontaminated stormwater and the waste material), and evaluate the future safety and stability of the dam in light 

of all methods and options for waste stabilization, dewatering, and closure activities; (ix) take all measures 

necessary to ensure that the existing and designated uses of surface waters, including LBR, receiving any 

contaminants from the Impoundment, are protected, and that water quality criteria in such surface waters achieve 

applicable regulatory standards for all parameters; and comply with all applicable point source surface water permit 

requirements and groundwater quality standards; (x) by March 31, 2013, submit to PADEP an application for a 
I. CCR Proven Damage Cases December 2014

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Impoundment will not create an imminent and substantial endangerment to health or the environment.

452

The Complaint follows groundwater degradation (by arsenic, calcium, sulfates, and chlorides) recorded

near the LBR impoundment as a result of the solid waste disposed of within the Impoundment.

453 It 

alleges that FirstEnergy failed to conduct required groundwater assessment and abatement actions 

regarding seeps or springs that developed in the vicinity of the Impoundment that had been contaminated 

by constituents from the Impoundment,454 in violation of PADEP’s regulations, a preceding (April 5, 

2006) Consent Order and Agreement with PADEP, and the Permit. On December 20, 2012, the Little 

Blue Run Regional Action Group issued yet another NOI to sue FirstEnergy over alleged leaking of 

heavy metals into nearby waterways from BMPS’s unlined coal ash disposal pond.455

Late in January 2013, FirstEnergy announced that it was scrapping plans for a new coal ash disposal 

facility adjacent to the soon to be closed (end of 2016) LBR impoundment.

456 Starting in 2017, 

 

major modification to the Permit for the Impoundment proposing a closure plan for the Impoundment; (xi) provide a 

copy of the required reports and the investigative/assessment results for review by the Greene Township community 

members, and participate in public meetings as requested by PADEP; and (xii) conduct monitoring sufficient to 

ensure that operation of the Impoundment will not cause or contribute to an exceedance of Ambient Air Quality 

Standards. See: FirstEnergy Closure Plan (2013) and Closure Plan Major Permit Mod Application:

https://www.firstenergycorp.com/content/dam/littlebluerun/files/Closure%20Plan%20Major%20Permit%20Mod%2

0Application_March%202013.pdf.

452 Also, for operating the Impoundment in violation of provisions of Pennsylvania’s Solid Waste Management Act 

of July 7, 1980, P.L. 380, as amended, 35 P.S. ' 6018.101 et seq. 

453 Section 7002(a)(1)(B) of RCRA was invoked because “groundwater is the source of drinking water for some who 

live near the Impoundment, and arsenic is a contaminant which has the potential to pose a risk of harm to human 

health. The groundwater in the vicinity of the Impoundment provides the base flow for the streams adjacent to and 

nearby the Impoundment. The potential exists for contaminants present in the groundwater to enter the streams and 

pose a risk of harm to the environment.”

454 Designated as S-30, S-31, Bayard Spring, Byers Spring, and Culler No. 3 Spring.

455 Little Blue Run Regional Action Group (2012a): The notice from the Environmental Integrity Project and Public 

Justice alleged FirstEnergy had “significant and ongoing” violations of the Clean Water Act, as well as other state 

and federal pollution control laws, at the LBR coal ash impoundment at the company's BMPS. According to the 

NOI, FirstEnergy disposed of 1,860,526 pounds of metals into the coal ash impoundment in 2011 alone, including 

79,500 pounds of arsenic and 26,190 pounds of selenium. The NOI said that water samples taken downstream from 

the coal ash impoundment’s discharge point at Outfall 021 revealed “concentrations of boron and selenium that 

exceed Pennsylvania Water Quality Criteria for fish and aquatic life, concentrations of arsenic and selenium that 

exceed federal drinking water standards, and concentrations of molybdenum that exceed federal health advisories.” 

EIP and Public Justice said that the elevated levels of heavy metals endanger public health and the environment.

Specifically, the NOI bases its allegations on water samples taken from Mill Creek downstream of the Impoundment 

discharge on October 2, 2012. Three water samples measured boron concentrations of up to 3,300 μg/L, that exceed 

the 1,600 μg/L chronic PA WQC for fish and aquatic life. A background sample collected in Mill Creek, about 1.72 

miles upstream of the Impoundment discharge (as the crow flies) had boron concentration of only 110 μg/L. Five 

water samples taken from Mill Creek downstream of the Impoundment discharge measured selenium concentrations 

of up to 66 μg/L, all exceeding the 4.6 μg/L chronic PA WQC for fish and aquatic life. A background sample 

collected in Mill Creek upstream of the Impoundment discharge revealed a selenium concentration below the 

detection level (less than 1 μg/L). Two water samples taken from Mill Creek downstream of the Impoundment 

discharge measured arsenic concentrations of 11 μg/L and 15 μg/L, both above the 10 μg/L MCL. A background 

sample collected in Mill Creek upstream of the Impoundment discharge revealed an arsenic concentration below the 

detection level (less than 1 μg/L). Finally, three water samples taken from Mill Creek downstream of the 

Impoundment discharge measured molybdenum concentrations of up to 110 μg/L, all above the 40 μg/L LHA. A

background sample collected in Mill Creek upstream of the Impoundment discharge revealed that molybdenum was 

below the detection Level (less than 5 μg/L). 

456 FirstEnergy said it has formally withdrawn PADEP and U.S. Army Corps of Engineers permit applications 

seeking to expand the 1,700-acre Little Blue facility; FirstEnergy to ship 3 million tons of coal ash annually up 
I. CCR Proven Damage Cases December 2014

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FirstEnergy plans to send CCRs from the BMPS to LaBelle, Pennsylvania, for use in coal pit mine 

reclamation activities. After being dewatered at the BMPS, over three million tons/year of dry ash and 

scrubber waste would be transported by barges for 96 miles down the Ohio and Monongahela rivers. 

Another 450,000 tons of scrubber material will continue being diverted to the National Gypsum plant

next to the BMPS, for recycling into wallboard.457 Citizen groups have expressed objections to 

FirstEnergy’s disposal plan in LaBelle, Pennsylvania.458

On March 29, 2013, FirstEnergy submitted to PADEP a closure plan for the LBR Impoundment. The 

proposed plan involves a two-layered synthetic liner placed over the Impoundment, overlain by a foot of 

seeded topsoil; and a small (about 100 acres), lined pool area behind the LBR dam, which would serve as 

a retention basin for any storm water or melted snow. 459 The plan’s implementation would commence in 

2017 and take about 15 years, covering 65 acres per year. After site closure, FirstEnergy will continue 

extensive environmental monitoring programs at the disposal facility, including dam safety and 

groundwater and surface water monitoring. Following an August, 2013 public hearing on the closure 

plan, stakeholders criticized the plan as inadequate.460 On October 3, 2013, PADEP issued a 29-page 

letter regarding FirstEnergy's closure plan for the LBR Impoundment.461

 

Monongahela, Ohio Rivers: http://www.post-gazette.com/stories/local/region/firstenergy-to-ship-3-million-tons-ofcoal-ash-annually-up-monongahela-ohio-rivers-671833/#ixzz2JOCItm22.

457 Coal Ash: Company scraps plan for dump expansion, Manuel Quinones, E&E reporter, January 25, 2013. The 

LaBelle site is over a 360-acre former strip mine and waste coal site along the Monongahela River. Notice of 

FirstEnergy’s application: Request for Determination of Applicability for beneficial use of low permeability 

cementitious material generated at the Bruce Mansfield Plant located in Shippingport Borough, Beaver County was 

published in the Pennsylvania Bulletin on November 2, 2013: http://www.pabulletin.com/secure/data/vol43/43-

44/2053a.html.

458 EIP stated: “FirstEnergy’s current placement of coal ash has posed a threat to health and the environment and 

FirstEnergy’s application lacks a variety of critical details needed to determine whether the proposed placement 

would pose similar or additional risks to public health or the environment... In order for a DOA to be granted 

pursuant to General Permit WMGR052, an applicant such as FirstEnergy must certify the coal ash meets the 

requirements for reuse as intended for coverage under the general permit and must certify the site meets the 

requirements for reuse as intended by the general permit. Because PADEP has already determined that the coal ash 

for which FirstEnergy is seeking approval to place in storage and in abandoned mines under WMGR052 may 

present threats to health and the environment serious enough to warrant a federal lawsuit, and because FirstEnergy’s 

DOA and additional application materials contain a variety of deficiencies and omissions regarding pertinent 

operational or safety information, PADEP must deny FirstEnergy’s request for approval under General Permit 

WMGR052.”

459 First Energy: Little Blue cleanup nearly 20 years away: 

http://www.timesonline.com/news/local_news/firstenergy-little-blue-cleanup-nearly-years-away/article_e8f6198f951b-5b95-a7e0-78fdd44eb454.html; FirstEnergy Future Plans/Planning for Little Blue Run Closure:

https://www.firstenergycorp.com/environmental/environmental_stewardship/by-productdisposal/LittleBlueRunInfo/future_plans.html, and Closure Plan: 

https://www.firstenergycorp.com/content/dam/littlebluerun/files/Closure%20Plan%20Major%20Permit%20Mod%2

0Application_March%202013.pdf

460 In September 2013, the Environmental Integrity Project, the Little Blue Regional Action Group and the 

Pennsylvania communities of Georgetown and Hookstown declared the proposed 15-year closure plan inadequate 

because it doesn’t require the utility to remove any of the waste from the pit, allowing the contamination of 

groundwater to continue indefinitely. “Even after the impoundment is closed,” the complaint says, “FirstEnergy’s 

own environmental models predict that only a small portion of the contaminants would be fully removed after 250 

years.”

461 According to 

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=37211992&vname=dennotallissues&jd=a0e2k2w5x

0&split=0, EIP’s spokesman claims that PADEP has identified three "major" deficiencies in FirstEnergy’s closure 

plan: failure to address the extent of the groundwater contamination in Lawrenceville, the groundwater clean-up 

plan, and the potential impact to air quality.
I. CCR Proven Damage Cases December 2014

104

On April 3, 2014, PADEP issued permit requiring closure of the LBR.462 The Closure Permit is 

concordant with the Consent Decree entered by the U.S. District Court for the Western District of 

Pennsylvania on December 14, 2012, outlining steps that FirstEnergy would take to cease waste disposal, 

close the impoundment, and offer to make public drinking water available to several residents living near 

the impoundment. FirstEnergy must cease disposal of waste into the impoundment by December 31, 2016 

and begin capping activities in some areas in 2015. The Closure Permit requires FirstEnergy to increase 

the groundwater and surface water monitoring points from 74 to over 300, implement controls for noise, 

odors and particulate emissions, conduct quarterly seep reconnaissance, institute corrective actions when 

contaminated seeps are found, pursue groundwater remediation measures, conduct post-closing 

monitoring maintenance for as long as environmental problems remain at the site, and complete the site 

closing by December 31, 2028, three years earlier than proposed by the company.463

On January 3, 2012, Edward and Debra Campbell sued FirstEnergy, alleging that the Utility was 

disposing of toxic coal ash in the LBR Impoundment and the ash contaminated the soil and water 

surrounding the impoundment.464 On October 10, 2013, a group of 53 residents from Lawrenceville, 

Hancock County, West Virginia, filed a lawsuit against FirstEnergy charging that the LBR Impoundment 

is causing leaching and seepage of contaminated water into their properties, with additional pollution 

coming from air emissions and other discharges.465 Although the filing law firm has negotiated the sale of 

more than a dozen Lawrenceville homes to FirstEnergy, most residents there feel that their properties are 

no longer amenable for sale.466

ICF (2010a) Rationale: Proven Damage. <Groundwater exceedances of primary and secondary EPA 

MCLs have been found both onsite and offsite, although FirstEnergy has acquired contaminated wells 

located offsite. Surface water exceedances of Pennsylvania’s WQC, CCC, and CMC have been found 

both onsite and offsite. Several impacts to the surrounding area have occurred, including dust, odor, and 

discharge issues. PADEP has issued several NOVs to FirstEnergy for reasons including dust, discolored 

water, and groundwater contamination.>

 

462 DEP issues permit requiring closure of FirstEnergy’s Little Blue Run impoundment , April 3, 2014: 

http://www.pa.gov/pages/newsdetails.aspx?agency=dep&item=15463.

463 PADEP requires that FirstEnergy install an impermeable geomembrane liner over the waste, then a cushion 

geotextile layer to protect the liner, a one-foot thick layer of soil, and a vegetative cover. The final elevation of the 

cover will be a gradual grade to eliminate infiltration into the waste and ensure that storm water remains 

uncontaminated. Additionally, FirstEnergy will reduce standing liquid behind the dam from the 214 acre pool to 100 

acres to create a drainage area behind the dam. The closure permit approves specific abatement measures to address 

groundwater contaminants (sulfates, sodium, calcium, magnesium, chloride and arsenic), detected in varying 

amounts in groundwater near the Impoundment. Finally, FirstEnergy has posted a financial assurance bond of more 

than $169 million, the largest bond for a waste management facility ever required by PADEP, to ensure that all work 

is properly completed.

464 West Virginia Record (2013). Hancock County Circuit Court judge signed a dismissal order on March 11, 2013 

in the lawsuit; the terms of the settlement were not disclosed.

465 According to 

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=37211992&vname=dennotallissues&jd=a0e2k2w5x0

&split=0 and Law firm hired in FirstEnergy lawsuit has good track record:

http://www.reviewonline.com/page/content.detail/id/569606/Law-firm-hired-in-FirstEnergy-la---.html, the lawsuit 

(Anderson v. FirstEnergy, NWVa, No. 5:13-cv-00141, 10/10/2013), filed by Kennedy and Madona LLP, seeks 

compensatory and punitive damages associated with past and continuous hazardous property intrusions, estimating 

the ‘amount of controversy’ for each plaintiff to exceed $75,000. Absent removal of the coal ash waste from the 

impoundment, the litigants claim that “groundwater contamination will persist indefinitely“.

466 West Virginia Record (ibid). The lawsuit alleges that the plaintiffs' properties have been "inundated with water 

via seeps from the impoundment," creating constantly wet conditions in the yards, causing the foundations to shift 

and producing mold.
I. CCR Proven Damage Cases December 2014

105

References

FirstEnergy Closure Plan (2013): Little Blue Run Disposal Area, Greene Township, Beaver County, 

Pennsylvania, Grant District, Hancock County, West Virginia; prepared for First Energy Generation, LLC 

Bruce Mansfield Plant, Shippingport, Pennsylvania; prepared by Civil & Environmental Consultants, 

Inc., Pittsburgh, PA, CEC Project 921-22x.8010, March 2013. Accessed Online November 2013.

https://www.firstenergycorp.com/content/dam/littlebluerun/files/Closure%20Plan%20Major%20Permit%

20Mod%20Application_March%202013.pdf

West Virginia record (2013): FirstEnergy sued by 53 over Hancock Co. coal ash disposal site. West 

Virginia Record, October 17, 2013. Accessed Online December 2013.

http://wvrecord.com/news/263363-firstenergy-sued-by-53-over-hancock-co-disposal-site

Little Blue Run Regional Action Group (2012): Notice of Violation and Notice of Intent to Sue 

FirstEnergy Generation Corporation for Violations of the Clean Water Act, Clean Streams Law, 

Emergency Planning and Community Right-to-Know Act, and Resource Conservation and Recovery Act 

at the Little Blue Run Coal Ash Impoundment in Beaver County, PA and Hancock County, WV,

submitted on behalf of the Little Blue Run Regional Action Group and its members, May 30, 2012. 

Accessed Online June 2012.

http://www.environmentalintegrity.org/news_reports/documents/2012_05_30_NOI_FINAL.pdf

Little Blue Run Regional Action Group (2012a): Notice of Violations and Notice of Intent to Sue 

FirstEnergy for Violations of the Clean Water Act and Pennsylvania Clean Streams Law at the Little Blue 

Run Coal Ash Impoundment in Beaver County, PA and Hancock County, WV, submitted on behalf of the 

Little Blue Run Regional Action Group and its members, December 20, 2012. Accessed Online 

December 2012.

http://op.bna.com/env.nsf/id/aada-937rbf/$File/NOI%20Little%20Blue%20Run%20Coal%20Ash.pdf

OR: 

http://environmentalintegrity.org/news_reports/documents/20121220FINALLBRSupplementalNOIwattac

hments.pdf

PADEP v. FirstEnergy (2012): Complaint, Commonwealth of Pennsylvania Department Environmental 

Protection v. FirstEnergy Generation Corp. in the United States District Court for the Western District of 

Pennsylvania, July 27, 2012. Accessed Online July 2012. 

http://www.environmentalintegrity.org/news_reports/documents/LittleBlueRunFirstEnergyComplaint.pdf

OR: http://www.cnsenvironmentallaw.com/2012/08/01/little%20blue%20run.pdf

PADEP v. FirstEnergy (2012a): Consent Order, Commonwealth of Pennsylvania Department 

Environmental Protection v. FirstEnergy Generation Corp. in the United States District Court for the

Western District of Pennsylvania, July 26, 2012. Accessed Online July 2012.

http://www.environmentalintegrity.org/news_reports/documents/FirstEnergyConsentDecreeFinal1.pdf

PennFuture (2012): Legal Cases/Current Cases, Bruce Mansfield. Accessed Online July 2012. 

http://www.pennfuture.org/legal_detail.aspx?Type=C&LegalCaseID=47

Michanowicz (2011): Little Blue Run Impoundment Community Well Water Sampling, Drew 

Michanowicz, May 18, 2011 (Based on the Little Blue Run Coal Combustion Residue Surface 

Impoundment Private Well Water Study), Center for Healthy Environments and Communities, University 

of Pittsburgh Graduate School of Public Health, Department of Environmental and Occupational Health. 

Accessed Online March 2012.
I. CCR Proven Damage Cases December 2014

106

http://www.chec.pitt.edu/documents/Public%20Education/LittleBlueRun-CommunityMtg-9_13_11.pdf

CHA (2010): Assessment of Dam safety, CCR Impoundments Final Report: First Energy Generation 

Corporation, Bruce Mansfield Power Plant, LBR Dam, Shippingport, Pennsylvania, February 23, 2010. 

Accessed Online July 2012. 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/bruce-final3.pdf

CCR Public Hearings (2010): Testimonials by impacted stakeholders in the Arlington, Virginia Hearing 

(Page 316) and the Pittsburgh, Pennsylvania Hearing (Pages 15-17, 81-84, and 91-93). Accessed Online 

July 2012. 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

EIP (2010a): In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their 

Environment, Thirty-Nine New Damage Cases of Contamination from Improperly Disposed Coal 

Combustion Waste, Case #29. The Environmental Integrity Project, EarthJustice and Sierra Club, August 

26, 2010. 

http://www.environmentalintegrity.org/news_reports/08_26_10.php

ICF (2010a): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix C, Case #29. ICF, 10/2010. 

EPA (2009): Response to EPA Request for Information, Coal Ash Impoundment Survey Results. 

Accessed Online July 2012. 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/first-mansfield.pdf

PA Geology (2009): Practical Uses for Air Pollution, Part 2 – Sulfur Dioxide. J.A. Harper, Pennsylvania 

Geology, Vo. 39, No. 4, winter 2009, pp. 6-12. Accessed Online March 2012. 

http://www.dcnr.state.pa.us/topogeo/pub/pageolmag/pdfs/v39n4.pdf

Environmental News Service (2007): Polluting Pennsylvania Power Plant Sued by Neighbors (October 

18, 2007). Accessed Online July 2012. 

http://www.ens-newswire.com/ens/oct2007/2007-10-18-092.html 

Martino (2004): Martino, R. L., 2004, Sequence stratigraphy of the Glenshaw Formation (Middle – Late 

Pennsylvanian) in the central Appalachian basin, in J. C. Pashin and R. A. Gastaldo, eds., Sequence 

stratigraphy, paleoclimate, and tectonics of coal-bearing strata: AAPG Studies, in Geology 51, p. 1–28. 

Accessed Online March 2012.

http://www.science.marshall.edu/martinor/research/Martino%20(2004).pdf

Thiers et al., (1976): Foundation treatment for the Little Blue Run Dam. Thiers, G.R.; Lobdell, L.W.; and 

Mihalcin, B.M. Proceedings, Rock Engineering for Foundations and Slopes, Vol. 1, ASCE Specialty 

Conference, Boulder, Colorado, August 1976. ALSO in Pittsburgh Geological society Golden 

Anniversary (1945-1995) Filed Guide Book. Peter J. Hutchinson, Field Trip Coordinator and Editor, 

1995, Appendix 1. Accessed Online November 2012.

http://www.pittsburghgeologicalsociety.org/out_of_print/1995golden/geology1995.pdf
I. CCR Proven Damage Cases December 2014

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PR20. Fern Valley Landfill, Orion Power Holdings, Inc., Elrama, Jefferson Borough, 

Allegheny County, Pennsylvania

Type: Off Site Landfill.

Background and Description: The Fern Valley Landfill is located in Elrama, Pennsylvania, on the 

west side of the Monongahela River.467 The landfill received at least some 4.85 million tons of bottom 

ash, fly ash, coal pile runoff sludge, lime grits, floor sweepings (composed mainly of lime and dirt), and 

Poz-O-Tec (stabilized FGD or scrubber sludge with added fly ash and lime)468 from the Elrama Power 

Plant469 between 1989 and 2003. However, the total tonnage of CCR disposed at the Fern Valley Landfill 

is unknown because it is not clear whether disposal started in 1979 or 1989:470 Has disposal started in 

1979, the maximum landfilled amount could have exceeded 11.1 million ton. Disposal stopped in the 

fourth quarter of 2003, and the landfill officially closed in 2007.

The CCR was disposed of in a relatively narrow, confined area.471 The vertical depth of ash placement at 

the site’s closure was 70 to 100 feet thick across much of the center of the Fern Valley, and some CCR 

was placed beyond the permitted boundaries. This resulted in several Notices of Violation (NOV) by the 

Pennsylvania Department of Environmental Protection (PADEP). The landfill is lined with a 3-feet thick 

layer of Poz-O-Tec.

472 Leachate, truck-wash water, and storm water runoff from the active disposal

 

467 The Fern ValleyDisposal Site is located two and a-half miles from the Elrama Power Station. It is located in a

small tributary valley along the northwest bank of the Monongahela River. This valley runs nearly parallel to

the Monongahela River for most of its length, and is separated from the river by a steep, narrow ridge. Local

elevations range from nearly 1,100 feet a b o v e m e a n s e a l e v e l at the ridge top to 770 feet m s l at

the valley mouth on Route 837, at the northeastern terminus of the Landfill. The Site’s northern boundary includes 

the inactive Clairton MSW landfill while to the east and west there are residential or undeveloped properties. 

Historically, coal-strip and deep mines occupied much of the property to the north and south of the site.

468 CATF (2007).

469 The Elrama Power Plant, located across from Elizabeth, Pennsylvania, has a 460 MW capacity, comprising four 

generation units: 93 MW (Unit 1, came online in 1952), 93 MW (Unit 2, 1953), 103 MW (Unit 3, 1954), and 171 

MW (Unit 4, 1960). According to http://www.marketwatch.com/story/10-q-genon-energy-inc-2012-08-09 (August 

9, 2012), GenOn Energy, the Plant’s owner since December 2010, mothballed Elrama’s Units 1-3 in June 2012 and 

Unit 4 was to be mothballed in October 2012. The whole power plant was to retire in March 1, 2014. GenOn stated 

that the four units are uneconomic due to the combined effect of market conditions and the significant capital and 

operating costs caused by their age. In addition, GenOn anticipates that future cash flows will be negative for these 

units because they will require costly project investment to maintain their operability and to comply with existing 

and anticipated environmental regulations. (FERC, 2012).

470 A 1993 Groundwater Assessment Plan and a 1994 Groundwater Assessment Report state that CCR disposal 

operations in Fern Valley started in 1979, while a 1995 Groundwater Assessment Report states the disposal 

operations started in 1989. The original documents on which these conflicting dates are based are part of EIP’s 

(2012) attachments. 

471 Although permitted “Total Project Acres” at the Fern Valley Disposal Site cover 110 acres, the total active 

disposal site area was reported as 55 acres.

472 According to Bryenton et al., (1996), Poz-O-Tec is a manufactured material that typically consists of a ratio of 1 

part flue gas desulfurization sludge (calcium sulfite, CaSO3) to 0.6 to 1 part fly ash to 1.5 to 2.0 percent quicklime, 

which is added as a catalyst. In certain states, it is authorized as an alternative CCR landfill liner material, because 

after placement and curing it is capable of attaining permeability of less than or equal to 1 x 10-7cm/sec (e.g., 

Illinois Title 35, Subtitle G, Chapter I, Subchapter I, Part 816, Section 816.510): 

http://www.ilga.gov/commission/jcar/admincode/035/035008160005100R.html. According to Iadevaia and 

Kitchens (1980), typical Poz-O-Tec solids have permeability coefficients of 10-6 to 10-8cm/sec. A permeability of 

10-6cm/sec is usual with freshly placed Poz-O-Tec mixtures. The permeability is reduced to 10- 7to 10-8cm/sec after 

curing. The cured material has properties similar to a low-strength concrete. For the chemistry and mineralogy of 

Poz-O-Tec, see page 17 in Worldwide Pollution Control Association (WPCA) – Duke Energy FGD Wastewater 
I. CCR Proven Damage Cases December 2014

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areas discharged to a leachate-collection and sedimentation/treatment pond near the lower terminal 

of the Landfill, a few hundred feet of the River. Water from the leachate collection/treatment pond

was discharged to the Monongahela River under an NPDES permit through Outfall 001.

Groundwater has been evaluated onsite; however, no offsite groundwater data are available. Surface 

water has been evaluated offsite in the Monongahela River. EIP (2010) claims that the interpretation of 

groundwater monitoring data at the site is hampered by apparent mischaracterization of several 

monitoring wells as ‘up-gradient’ when an examination of the CCR-transformed hydrogeology of the site 

indicates that they are probably receiving groundwater inflow from the CCR landfill. EIP (2010) claims

that the less permeable, lime-stabilized FGD sludge and the Poz-O-Tec liner would have contributed to 

compacting and sealing, respectively, the CCR ash to reduce the permeability of the CCR pile, hampering 

the downward migration of leachate. Flow data from the quarterly reports on the leachate collection 

system of the Fern Valley Landfill indicate there has to be a substantial build-up of leachate from 

infiltration of precipitation and its runoff over the disposal area, resulting in a saturation of the ash pile 

and the formation of water table(s).

473

The Fern Valley Disposal Site is located in the western portion of the Appalachian Plateau Physiographic 

Provence. The general stratigraphy of the area comprises units of the Pennsylvania Age consisting of the 

lower Monongahela and upper Conemaugh Groups outcropping into the valley. The bedrock units are 

composed primarily of cyclothems474 of gray, red, and green shale, claystone, sandstone, thin coal seams,

and thin zones of limestone. 

The site lies on the eastern flank of the Murrysville - Roaring Run Anticline about 400 feet east of its

axis. The axis strikes about north 40 to 50 degrees east and plunges very gently to the southwest. This 

anticline is essentially flat-lying in the vicinity of the site (the calculated dip of the bedrock at the site is

1.5 degrees to the south-southeast).475

Two confined, poorly-connected aquifer units, dipping to the Monongahela River476 outcrop in the 

landfill’s area: the Morgantown Sandstone aquifer outcrops in the floor of Fern Valley and on the side of 

 

Treatment Seminar, March 7, 2013; Options for Managing Dissolved Solids from FGD Wastewater: 

http://wpca.info/pdf/presentations/Charlotte2013/3-

Options%20for%20Managing%20Solids%20from%20FGD%20Wastewater%20by%20John%20Daniels,%20UNC.

pdf. 

At the Fern Valley Landfill, the Poz-O-Tec layer was placed over a bottom ash bed and drain system. 

During operation, CCR was placed beyond the lateral boundaries and above the elevations of the permitted disposal 

area, possibly beyond the limits of the liner/drainage system (EIP 2010, page 80.)

473 According to Norris (2002), “Water does drain from the leachate collection system into the sediment pond. This 

flow averages 15 gpm.... this yield of leachate represents an annual infiltration of 3.2 inches, less than 10% of the 

annual precipitation and itself a minimal infiltration value for unconsolidated sediments with no impermeable cover. 

However to the extent that run-off is also routed through this system .... the flow is far too low.” Far more water is 

infiltrating the surface of the disturbed area or draining into a conveyance toward the leachate collection pipes than 

is coming out of these pipes into the sediment/treatment pond. It is reasonable to assume that much of this water is

exiting the site as mounding-induced recharge to aquifers that outcrop into Fern Valley. EIP claims that such a water 

table(s) may have formed at elevations considerably above the water levels in the “up-gradient” monitoring wells 

MW-5A, MW-12, and MW-15.

474 Vertically repetitive cycles.

475 The stratigraphic and geologic information is from Duquesne Light Company Fern Valley Disposal Site 

Groundwater Assessment Report (Phase I), 1994. 

476 Unless reflecting a local structural disturbance (e.g., a fault), this is inconsistent with the statement in the 

preceding paragraph that ‘the anticline is flat-lying in the vicinity of the site.’
I. CCR Proven Damage Cases December 2014

109

the ridge above the Monongahela River, underlain by the Duquesne Coal and Limestone.

477, 478 The 1994 

and 1995 Groundwater Assessments indicate that groundwater flow in Fern Valley and its tributaries is 

influenced by fractures and that groundwater flow is primarily fracture-controlled in the Morgantown 

Sandstone.479 Aquifer testing showed that hydraulic conductivities in the Morgantown Sandstone vary 

widely across the site, ranging from 1 x 10 -7cm/sec to 1.6 x 10 -3cm/sec. This wide range of calculated 

hydraulic conductivities is consistent with what is expected for unconsolidated soils underlain by bedrock 

units found at the site. In general, though, hydraulic conductivities are very low except in the vicinity of 

apparent fracture traces, such as near monitoring wells MP-5A and MW-17. 

The area has been completely mined for the Pittsburgh Coal.480 This was predominantly underground 

mining with complete extraction, but there was also strip mining. The Pittsburgh coal-seam, at an 

approximate elevation of 1010’ AMSL, lies everywhere above the Fern Valley drainage, where CCR is 

disposed-off in the valley. However, the upper portion of the CCR landfill onlaps onto the former outcrop 

and mine voids of the Pittsburgh Coal.481 Strip mining spoil (silty clay and rock fragments) present in the 

southern portion of the site is 28.5 feet-thick at the location of MW-10. Natural, undisturbed soils at the 

site consist of silty clays with a maximum thickness (at MW-11) of 9.4 feet.

Impact and Damage Claims: EIP (2010) indicates that levels of arsenic exceeded the primary EPA 

Maximum Contaminant Level (MCL) in onsite groundwater (in 2001, maxima reached 36 times the 

primary MCL in one down-gradient well and 29 times in another). Additionally, boron, chloride, sulfate, 

and total dissolved solids (TDS) regularly exceeded health advisory limits or EPA SMCLs in onsite 

groundwater. 

EIP (2010) also notes that selenium concentrations in surface water downstream of the landfill have 

exceeded Pennsylvania Water Quality Criteria (WQC), and other constituents (including arsenic, chloride, 

sulfate, and TDS) were found at concentrations higher than in a sampling location upstream of the 

landfill. PADEP rejects many of these claims, e.g., claims about selenium exceedances, in 2001 and 2002, 

of the Pennsylvania surface water quality standard for the protection of aquatic life in surface water 

downstream of the landfill; of sulfate and TDS concentrations having commonly exceeded SMCLs by 

two to three times in several measurements downstream from the landfill; of total arsenic in MW-20, a 

down-gradient monitoring well, monitored in June 1995 at 0.028ppm (2.8 times the MCL); that between 

1997 and 2006, surface water quality (SW-2) has significantly degraded downstream from the landfill 

compared to upstream water quality (SW-1) with respect to chloride, sulfate and TDS; and that selenium 

was measured at SW-2 at 0.047ppm in March 2001 and at 0.028ppm in February 2002, well in excess of 

Pennsylvania’s water quality standards for the protection of aquatic life from chronic toxicity effects of 

selenium (0.0046ppm). 

Moreover, PADEP challenges the assertion that damages at the site are associated with CCRs,482

implicating instead - based on a 1995 Groundwater Assessment - pre-existing sources, i.e., acid mine 

 

477 Duquesne Light Company Fern Valley Disposal Site Groundwater Assessment Report, ibid. 

478 According to Hutchinson (1995), both the Morgantown Sandstone and the Duquesne Coal and Limestone are

members of the Casselman Formation, Conemaugh Group.

479 Fern Valley and its side valleys appear to be fracture-controlled, as suggested by their orientation relative

to each other and to the Monongahela River. A potentiometric surface study in the 1994 Assessment found that, 

“groundwater flow may be locally controlled by hydrogeologic anomalies (i.e., lineaments) and groundwater flow 

may (be) in more than one direction.”

480 According to Hutchinson (1995), the Pittsburgh coal-seam comprises the basis of the Pittsburgh Formation of the 

Mississippian-Age Monongahela Group; this Group overlies the Mississippian-Age Conemaugh Group.

481 Fern Valley Assessment, Charles H. Norris, Geo-Hydro, Inc., 2002.

482 PADEP comment to the proposed CCR rule dockets: proposed CCR rule: EPA-HQ-RCRA-2009-0640 and the 

October 2011 NODA: EPA-HQ-RCRA-2011-0392-201:
I. CCR Proven Damage Cases December 2014

110

drainage (AMD) from an up-gradient, abandoned surface coal mine and leachate from the side-gradient, 

unlined Clairton municipal landfill.483 PADEP further states that some of EIP’s (2010) claims cannot be 

confirmed due to the lack of well- and date-specific information, lack of specific analytical surface data 

for selenium for the two years referenced, and lack of Statistically Significant Increases (SSIs) of arsenic 

in four wells between 1995 and 2002. 

EIP’s (2010) contention that several of the monitoring wells are mischaracterized as up-gradient when 

actually they might be receiving groundwater inflow from the CCR landfill due to mounding at the 

landfill site are challenged by PADEP. PADEP cites (i) significant water level elevation differences (100-

200 feet) between the wells designated as up-gradient vs. those designated as down-gradient, as well as 

topographic elevation differences, in support of their correct designation; and (ii) a variety of engineered 

and constructed drainage features at and underneath the landfill’s site that presumably facilitate fast 

lateral groundwater drainage that would prevent any groundwater from mounding within the disposed 

CCR landfill. 

EIP rebuts PADEP’s arguments by invoking that the configuration and low-permeability of the CCR fill 

are amenable to the formation of mounding aquifer(s) within the CCR pile that have probably immersed 

the screened intervals of the monitoring wells designated as up-gradient (MW-12, MW-15, and MW-5A) 

with leachate fluids characterized by elevated alkalinity, TDS, arsenic, sulfate, and boron, as well as of 

mildly alkaline pH values.484 Additional arguments in support of such a scenario include changing water 

levels in “up-gradient” wells that are far below levels of leachate in the ash fill, a very close proximity of 

one of those wells, MW-5A, to the CCR, and contaminant concentration patterns in the “up-gradient” 

wells that appear to be responding to changing water levels. 

 

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CB4QFjAA&url=http%3A

%2F%2Fwww.governor.state.pa.us%2Fportal%2Fserver.pt%2Fdocument%2F1208309%2Fmtchellphillipssewardfe

rn10-27-11_pdf&ei=-3ZyVLG_G8HyQSzjoG4CQ&usg=AFQjCNHVoOFknSX8FQp5uj0ThlpDElJNig&bvm=bv.80185997,d.aWw.

483 Phase II Groundwater Assessment Report, Fern Valley Disposal Site, Jefferson Borough, Pennsylvania.

Prepared for: Duquesne Light Company, Pittsburgh, Pennsylvania, December 18, 1995. Note, however that fieldtesting of springs and seeps located upstream of the disposal area and below the coal horizon during the Phase

II Groundwater Assessment in 1995 lead to the conclusion that “All pH measurements were neutral,

indicating no acid mine drainage.” Actually, the pH of eleven discharges was recorded as mildly acidic, 

ranging between 5.5 and 7.5, and averaging 6.1.

484 In the down-gradient monitoring wells: MW-6, MW-7, MW-20, and MW-21, the pH and alkalinity showed more 

tempered increases, attributed to influx of more acidic leachate from the Clairton Landfill, and higher concentrations 

of TDS, arsenic, sulfate, and boron. While TDS concentrations at the up-gradient MW-5A were substantially less 

than at the down-gradient MW-21, they followed the same approximate pattern as at MW-21, suggesting an 

influence from the ash fill. Boron concentrations were noticeably higher in down-gradient wells MW-21 and MW-6 

than in the up-gradient wells, likewise reflecting contamination of the groundwater from CCR. The average 

concentration of boron at MW-21 was 998μg/L and its average concentration at MW-6 was 635μg/L. These 

compare to boron averages in the up-gradient wells of 396 μg/L at MW-5A, 260μg/L at MW-15, and 144μg/L at 

MW-12. Concentrations of boron at MW-5A are consistently highest among the three up-gradient wells, suggesting 

that MW-5A, which is closer to the ash fill than either MW-15 or MW-12, is also being contaminated to a greater 

extent by coal ash leachate. Finally, the highest concentrations of arsenic were measured in March 2001, when 

arsenic was found to exceed the MCL many-fold in all four down-gradient wells and in the presumably up-gradient 

MW-5A within 50 feet of the ash fill. Arsenic concentrations ranged from 363μg/L in the down-gradient MW-21 to 

135μg/L in the up-gradient MW-5a. Dissolved arsenic concentrations in the March 2001samples ranged from 

203μg/L in the down-gradient MW-20 to 100μg/L in the down-gradient MW-7. Field pH ranged from 6.77 units at 

MW-21 to 9.1 units at MW-7. Furthermore, the groundwater containing these arsenic levels was not acidic, hence 

AMD does not seem to be involved.
I. CCR Proven Damage Cases December 2014

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Furthermore, EIP presents specific sampling data to buttress their 2010 claim that surface water quality at 

SW-2 has significantly degraded downstream from the CCR landfill compared to upstream water quality 

(at SW-1).485 From around 1997 to 2006, chloride, sulfate and TDS levels generally ranged two to five 

times higher at SW-2 than at upstream sampling locations (SW-1 and SW-3), and sulfate and TDS 

concentrations at SW-2 commonly exceeded the secondary MCL by two or three times. Following 

sampling and analysis for arsenic in the first quarter of 2002, PADEP conceded arsenic’s association with 

CCR leachate.

Ecologic damage: According to EIP (2010), a benthic study commissioned by the utility in 1995 found 

that based on two environmental indices, mean species diversity and equitability, the downstream location 

(SW-2) was degraded relative to the upstream sampling location (SW-1). PADEP attributes the aquatic 

population impact to discharges of untreated leachate from the municipal waste landfill upstream of SW2. This argument is rebutted by EIP (2010) by asserting that PADEP failed to acknowledge that the 

March 1995 Benthic Survey did not sample the tributary that discharges from the ravine draining the 

Clairton Landfill site. 

EIP (2010) also noted a number of serious deficiencies in the NPDES permit486 and discharge from the 

landfill. PADEP claims that the permit limits were established based on the fact that the treated leachateflows discharge to the Monongahela River,487 and that the facility is in compliance with its NPDES 

permit. Furthermore, Reliant Resources, Inc. (RRI)488 challenges EIP’s (2010) claims489 about the 

system’s presumed lapses in collecting, monitoring, and analyzing all on-site and site vicinity water types, 

stating that two conveyance systems, independent of the leachate transport system, collect all the noncontact stormwater as well as waters from the upland wetlands, in accord with the requirements of the 

NPDES- or the residual waste permit.490 EIP challenges PADEP’s assertions of compliance by pointing 

out that they ignore the basic legal protection in the Pennsylvania Clean Streams Law and the State’s

water quality criteria regulations that is afforded to all surface waters of the Commonwealth of 

Pennsylvania, not just larger bodies of water.491

 

485 SW-2 is located well beyond the waste boundary of the landfill on a tributary 200 feet downstream of NPDES 

Outfall 001, the principal spillway for the leachate pond. This sampling location is also right before the tributary 

enters a culvert that empties into the Monongahela River.

486 Permit #PA0090271.

487 From PADEP’s comment it can be inferred that the pollution limits as established are above the prevailing 

standards. 

488 On December 3, 2010, RRI merged with Mirant Corp. to form GenOn Energy.

489 RRI’s comment to the proposed CCR rule: EPA-HQ-RCRA-2009-0640-9274.

490 RRI states that monitored constituents include aluminum, arsenic, boron, chloride, lead, selenium, sulfate, and 

TDS, and that except for aluminum, samples are taken in compliance with the residual waste landfill permit and the 

analytical results are submitted to the regulatory agency. Samples are taken quarterly for chloride, sulfate, TDS, 

arsenic, lead, and selenium, and annually for boron. Samples are analyzed for aluminum in compliance with the 

NPDES permit with numerical limits defined for Outfalls 001-004.

491 To implement Pennsylvania’s Clean Streams Law (35 P.S. §§ 691.5(b)(1) and 691.402), 25 PA Code Chapter 96 

establishes the requirement for water quality criteria to be met in all surface waters of the state in § 96.3. (c): “To 

protect existing and designated surface water uses, the water quality criteria described in Chapter 93 (addressing 

water quality standards), including the criteria in §§ 93.7 and 93.8a(b) (addressing specific water quality criteria; and 

toxic substances) shall be achieved in all surface waters at least 99% of the time, unless otherwise specified in this 

title. The general water quality criteria in § 93.6 (addressing general water quality criteria) shall be achieved in 

surface waters at all times at design conditions.” (Emphasis added).
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Evaluation against Proven Damage Criteria492

Resolution: Groundwater assessment activities at the Fern Valley site were initiated in 1993 to 

comply with PADEP’s regulations for residual-waste landfills. A Phase I Groundwater Assessment

Plan was developed by S.E. Technologies, Inc. and approved by PADEP on April 22, 1993. Phase I

activities were conducted between March 1993 and August 1994. Results were submitted to PADEP

in a Phase I Groundwater Assessment Report. This report recommended that additional

investigations be conducted to define the groundwater flow direction and better characterize

groundwater quality, and to allow assessment of groundwater quality. PADEP's responses to the

Phase I report were received in March, 1995. Civil Environmental Consultants was retained to

continue the assessment activities initiated by S.E. Technologies through development and

implementation of a second phase of assessment.493

There were several PADEP NOVs around 2002 for CCRs placed beyond boundaries of the permitted 

landfill area and failure to report monitoring data. Ash disposal stopped in 2003, and PADEP approved 

closure of the site in July 2007. PADEP is expected to continue requiring water quality monitoring 

through at least 2017.

ICF (2010) Rationale: Proven damage. <A documented study found degradation of the benthic 

community downstream of the landfill relative to the upstream location. Groundwater exceedances of the 

primary EPA MCL for arsenic have been found on site. There are no current regulatory corrective actions, 

 

492 ICF (2010).

493 Phase II Groundwater Assessment Report, Fern Valley Disposal Site, Jefferson Borough, Pennsylvania (ibid).

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary MCLs or other health-based 

standards measured in groundwater at 

sufficient distance from the waste 

management unit to indicate that hazardous 

constituents have migrated to the extent 

that they could cause human health 

concerns

 Onsite groundwater data exceeded the primary EPA MCL 

for arsenic.

 Onsite groundwater data exceeded health advisory limits or 

secondary MCLs for boron, chloride, sulfate, and TDS.

 No offsite groundwater data are available. 

Criterion 2: Where a scientific study 

provides documented evidence of another

type of damage to human health or the 

environment (e.g., ecological damage)

 Selenium in surface water downstream of the landfill 

exceeded Pennsylvania WQC.

 A benthic study found a decrease in species diversity of 

aquatic animals has occurred in the downstream tributary. 

Criterion 3: Where there has been an 

administrative ruling or court decision with 

an explicit finding of specific damage to 

human health or the environment

 Due to placement of waste outside of the permitted landfill 

boundaries and failure to report monitoring data, PADEP 

issued several noticed of violation in 2002. 

 Water quality assessments have been required and will 

continue through 2017 in response to citizen and regulatory 

concerns. 

 Actions and responses by the operator have satisfied 

regulators resulting in no further corrective regulatory 

actions.
I. CCR Proven Damage Cases December 2014

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administrative rulings, or court decisions associated with the site; however, notices of violation were 

issued by PADEP in the past.>

Postscript: USWAG claims494 that this case does not meet the criteria for a damage case because the 

allegations are only for on‐site groundwater. USWAG further claims that the information provided for the 

site does not contain documented evidence of off‐site groundwater monitoring data or off‐site 

groundwater monitoring data showing exceedances of specified health‐based criteria.

EIP claims that a fundamental question to evaluate PADEP’s contention about the impact of legacy 

mining and the unlined MSW (Clairton) Landfill as contributing to exceedances of up-gradient 

monitoring wells is whether mounding of groundwater flow is carrying contamination from the coal ash 

landfill to “up-gradient” monitoring wells in addition to contamination that may have reached these wells 

from these two legacy activities. The crux of PADEP’s response to the groundwater impacts documented 

at the Fern Valley site rests on its assertion that data from “up-gradient” wells show nearly equal or higher 

concentrations of many of the contaminants documented at down-gradient wells at the site. However, the 

coal ash is placed very close to some of these “up-gradient” wells, and the completion intervals for all of 

the “up-gradient” wells appear to be at elevations below and therefore down-gradient of water tables that 

apparently form in the ash. A final resolution of the respective contribution of the alleged sources to the 

Site’s impacts may have to await a stable isotopic groundwater study of boron, sulfur, and strontium.

References 

FERC (2012): Order Accepting and Suspending Tariff Filing, Subject to Refund and Establishing 

Hearing and Settlement Procedures, GenOn Power Midwest, LP, Docket no. ER12-1901-000, issued July 

30, 2012. 140 FERC ¶ 61,080, U.S. Federal Energy Regulatory Commission. Accessed Online November 

2014.

http://www.ferc.gov/.../201207301742...

EIP (2010): Out of Control: Mounting Damages from Coal Ash Waste Sites, Thirty-one New Damage 

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #22. The 

Environmental Integrity Project and EarthJustice. February 24, 2010. Accessed Online September 2013.

http://www.environmentalintegrity.org/news_reports/news_02_24_10.php

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix B, Case #22. ICF, 10/2010.

CATF (2007): Impacts on Water Quality from Placement of Coal Combustion Waste in Pennsylvania 

Coal Mines. J. Stant, L. Evans, R. Gadinski, C. Norris, Clean Air Task Force (CATF). July 2007. 

Accessed Online March 2012

http://www.catf.us/resources/publications/files/PAMinefill.pdf

Bryenton et al., (1996): Design and Construction Guidelines for Coal Combustion By-Product Utilization 

in Abandoned Mine Land Settings -A Case Study. Donald L. Bryenton, P.E. John H. Gasper, P.E. ATC 

Associates, Inc. Indianapolis, Indiana. Accessed Online November 2012. 

http://www.techtransfer.osmre.gov/nttmainsite/Library/proceed/ccb1996/session4.pdf

Hutchinson (1995) : Pittsburgh Geological Society Golden Anniversary (1945-1995) Field Guide Book. 

Peter J. Hutchinson, Field Trip Coordinator and Editor, 1995. Accessed Online November 2012. 

 

494 Comment to the 2011 NODA: EPA-HQ-RCRA-2011-0392-0211, citing PADEP’s response to EIP (2010).
I. CCR Proven Damage Cases December 2014

114

http://www.pittsburghgeologicalsociety.org/out_of_print/1995golden/geology1995.pdf

Iadevaia and Kitchens (1980): Engineering and Development Support of General Decon Technology for 

the Darcom Installation Restoration Program. Task 4. General Technology Literature Searches (II): 

Solidification Techniques for Lagoon Waters, Rosa Iadevaia and Judith F. Kitchens, Atlantic Research 

Corporation, Alexandria, Virginia, December 1980. Accessed Online October 2013.

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=12&ved=0CC4QFjABO

Ao&url=http%3A%2F%2Fwww.dtic.mil%2Fcgibin%2FGetTRDoc%3FAD%3DADA244081&ei=aYFxUsL0I6nRsATUl4DwCA&usg=AFQjCNHgQEO

8eI0DCRCKgHDWzJ0qnIAe8Q&sig2=CMloPtbWGe5hUGBas_aeeQ&bvm=bv.55617003,d.eW0

PR21. Hatfield’s Ferry Power Station, Allegheny Energy Supply (AES) Company, 

Masontown, Fayette County, Pennsylvania

Type: Landfill, Leachate Storage Impoundment, and a Minefill.

Background and Description: The 1,728 MW, three generation-units Hatfield’s Ferry Power Station , 

located on the west bank of the Monongahela River, began operation in 1969-1971.495 First, CCR was 

disposed of in the Hartley strip mine, on adjoining property to the south.496 The strip mine has also an 

infill of coal refuse. The first landfill was a 40-acre unlined area designated as Phase 1 and Phase 2. These 

two units, permitted as CCRs landfills in May, 1984, were built with a leachate collection system and 

under-drain system to collect groundwater in the coal ash. In October 2009, Phase 3 went into service.

Allegheny Energy added magnesium hydroxide to the leachate to precipitate aluminum, iron and 

manganese; until 2001, leachate and wastewater were discharged directly into an unlined earthen 

impoundment and then into a tributary of Little Whitely Creek, a third-order tributary of the Monongahela 

River. In the spring of 2001, PADEP determined this discharge to be in violation of its National Pollutant 

Discharge Elimination System (NPDES) permit,497 following which the operator implemented a passive 

wetland treatment system for the leachate.498 The wetland treatment system was designed to remove or 

reduce concentrations of iron, aluminum, manganese, and TSS and to control pH, but was not specifically 

designed to treat other problematic constituents in CCR leachate. In addition to coal ash, the landfill 

began receiving FGD sludge from the Hatfield Plant in 2007. This system includes an equalization basin, 

four wetland cells, five rock drain cells, and a sedimentation pond. 

 

495 Units and in-service dates: 576 MW (1969), 576 MW (1970), 576 MW (1971). Late in 2012, FirstEnergy 

Corporation announced it is studying whether to modify Hatfield’s Ferry to add natural gas to its three coal-fired 

boilers (Frontier Business Edge, 2012). Citing the cost of environmental compliance and a weak market for 

electricity, FirstEnergy announced on July 9, 2013 that it expects to deactivate its AES subsidiary’s southwest 

Pennsylvania Hatfield's Ferry power station in the fall of 2013. The Plant has been scheduled for closure, subject to 

a review for possible grid reliability implications (Grounded, 2013). The Plant closed at the end of 2013 (Herald 

Standard, 2013).

496 According to Allegheny Power (1996), the Waynesburg coal has been extensively strip-mined in upland areas 

underneath and south of the disposal area. Mine spoil thicknesses of up to 106 feet were encountered at a test-hole 

location along the margin of the disposal area. The generally mined-out Waynesburg coal was formerly exposed

in the disposal area at an elevation of about 1,030 feet AMSL. Except for a few unmined remnants, the

materials above an elevation of 1,030 feet AMSL consist ofre-graded mine spoil and ash which were codisposed in the strip mine by the coal operator.

497 Permit No. PA0002941.

498 CCB Leachate Collection and Treatment System Corrective Action Plan, Hatfield’s Ferry Power Station, 

Monongahela Township, Greene County, NPDES Permit No. PA0002941 – Outfall 007.
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Between the late 1990s and 2009, and until banned due to excessive aluminum leachate, some of Hatfield 

Ferry plant’s CCRs were barged down the Monongahela River, to a dock across from Vestaburg, and 

used in the reclamation of the LaBelle strip mine (east of the river).499 Coal ash and Flue Gas 

Desulfurization (FGD) Material from the Hatfield’s Ferry Power Plant, among others, have been used to 

blend with the coal refuse generated by the adjacent Coresco, LLC coal preparation activities near 

Maidsville, West Virginia.500 

The Hatfield’s Ferry facility Site lies along the Lambert Syncline, which strikes from N700W to N550E, 

plunges gently to the northeast and dips northward at 0.40to 1.60. Bedrock beneath the site consists of

Permian-age strata of the DunkardGroup underlain by the Pennsylvanian-age strata of the

Monongahela Group. In most areas, Dunkard Group strata were removed in conjunction with strip

mining of the Waynesburg Coal, which is the basal unit of the Group. 

The 390-feet thick MonongahelaGroup extends from the bottom of the Waynesburg coal to the

base of the Pittsburgh coal. Over one-half of the Monongahela Group’s aggregate thickness

consists of relatively persistent limestone beds, and the remainder comprises variable shale,

discontinuoussandstone, and persistent coal beds. Primary marker beds in the Monongahela Group

are three prolific coal resources of historic economic importance throughout the region: the

Uniontown, Sewickley and Pittsburgh coals.

According to EIP (2010a), four aquifers have been identified at the landfill: a mine spoil aquifer located 

to the south of Phases 1 and 2;501 a rind aquifer consisting of weathered bedrock;502 a deeper Uniontown 

Sandstone aquifer;503 and the even deeper Benwood Limestone aquifer.504 Groundwater flow directions 

 

499 The Labelle Mine is located in Greene County, Luzerne Township, Pennsylvania: See http://www.postgazette.com/stories/news/health/large-loads-in-la-belle-277904/ and Gary Kuklish and co-signers’ comment to the 

proposed CCR rule: EPA-HQ-RCRA-2009-0640-8243. The ban was put in place ‘because that source does not 

qualify for statewide certification under 25 Pa. Code § 287.663 for beneficial use at active and abandoned coal 

mines in Pennsylvania’.

500 On March 11, 2013, the Sierra Club and the West Virginia Highlands Conservancy issued a 90-Day Notice of 

Intent to file citizen suit for violations of RCRA at the Coresco LLC Coal Refuse Disposal areas near Maidsville, 

WV (west of the Monongahela River), where, under an OSMRE permit it has been disposing of coal refuse mixed 

with CCR in a manner that allows contaminated groundwater to migrate to the Craft’s Run, a local stream, causing 

or contributing to levels of ionic pollution that are harming organisms that live in the stream. On September 17, 

2014, the parties entered a Consent Decree in the U.S. District Court for the Northern District of West Virginia at 

Clarksburg, whereby the defendants agreed to collect and treat leachate from two seeps along Craft’s Run and then 

to discharge them pursuant to their NPDES permit: Case 13-12211-BLS Doc 1496-1 Filed 09/17/14 Page 1 of 18

(page 6).

501 The average hydraulic conductivity of the mine spoil is conservatively estimated at 5,000 gpd/ft2

,

 

several orders of magnitude higher than that of the underlying bedrock.

502 As is typical of the Appalachian Plateau area, stress relief, fracturing and weathering have combined 

to modify the stratigraphic controls on shallow groundwater flow by creating a more conductive 

"rind" over the surfaces of the hills and valleys. The rind constitutes a shallow aquifer that cuts across 

the layer cake, stratigraphically transmitting water by primary and secondary permeability.

503 The hydraulic conductivity of the Uniontown Sandstone aquifer has been estimated to range from 14 to 120

gpd/ft

2 near the crop line, where it has increased as a result ofstressrelief fracturing and weathering.

504 Both the Uniontown Sandstone and the Benwood Limestone belong to the Upper-Pennsylvania age Monongahela 

Group; Geologic Unit: Uniontown: http://ngmdb.usgs.gov/Geolex/NewRefsmry/sumry_4214.html and Geologic 

Unit: Benwood: http://ngmdb.usgs.gov/Geolex/NewRefsmry/sumry_412.html. The hydraulic conductivities

within the Benwood limestone Aquifer at depth and away from outcrop areas range from 0.1 to 0.78 gpd/ft2. 

In shallow areas, where the Benwood limestone is part of the fractured rind system, hydraulic 

conductivities range from 0.21 to 3.5 gpd/ft2.
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within the mine spoil and rind aquifers are generally in the same direction as the ground surface 

topography – discharging to the west, north, and east along the top of bedrock and along a covered stream 

valley that discharges to the Monongahela River south of landfill Phases 1 and 2. Groundwater within the 

Uniontown and Benwood formations generally flows to the northwest, towards bedrock outcrop areas and 

eventually mixes with mine spoil and rind aquifer groundwater. Shallow groundwater flow in the bedrock 

is due to natural stress fractures in the bedrock and from secondary fractures from strip mining. The 

groundwater flow rates are reportedly very high, especially near stream valleys and bedrock outcrop 

areas.505 The landfill site is a recharge area for each underlying aquifer.

Four streams around the landfill perimeter originate from shallow groundwater that emanates at springs or 

wetlands. Those streams are located to the north, northeast, southeast, and southwest of the landfill –

indicating that groundwater flow discharges radially from the landfill that is located on higher ground 

elevations. All of the streams are perennial, classified as Warm Water Fisheries (WWF) under PADEP 

regulations and have a protected use for aquatic life.

Impact and Damage Claims: EIP (2010a) indicates that onsite groundwater monitoring since 2005 has 

shown contamination of groundwater related to the CCR disposal areas.506 Exceedances have included 

arsenic above the primary EPA MCL in three wells hundreds of yards south and east of the landfill, with 

dissolved concentrations more than x 11 the MCL;507 boron (maximum 10.6 ppm) and molybdenum 

(maximum: 766 ppb) above the EPA’s Lifetime Health Advisory (HAL) and the Superfund Removal 

Action Level (RAL), respectively;508 and manganese, sulfate, total dissolved solids (TDS), and aluminum 

above EPA SMCLs. These exceedances occurred at a number of monitoring wells around the Phase 1 and 

2 landfills, the new Phase 3 landfill, the leachate collection sump, and the Hartley mine disposal area.509

EIP (2010a) also notes that considering the discrete groundwater aquifers, some of the wells monitored as 

up-gradient do not actually meet the criteria for up-gradient and do show contamination from the CCRs 

 

505 According to Allegheny (2006b), as cited in EIP (2010a). Maximum groundwater flow velocities are 149 feet per 

year for the mine spoil aquifer, 735 feet per year for the rind aquifer and the Uniontown Sandstone aquifer, and 137 

feet per year for the Benwood Limestone aquifer. Allegheny Power (1996) presents a different set of flow velocity 

values, which reflect the depth- and fracture-dependent hydraulic conductivity of the two bedrock aquifers: 

Uniontown Sandstone aquifer: 440 to 14,000 feet per year; and the Benwood Limestone aquifer: 1,300 to 3,100 feet 

per year.

506 A citizens group, Natural Resource Defense Council, complains that while Pennsylvania residual waste 

regulations call for quarterly testing of groundwater for parameters such as pH, chloride, sulfate, total alkalinity, 

total dissolved solids, iron, and manganese, among others, they require only one annual sampling for toxic 

contaminants associated with coal ash leachate such as arsenic, barium, cadmium, chromium, copper, lead, 

mercury, selenium, silver, and zinc. Such infrequent monitoring may fail to detect signs of groundwater quality 

degradation, particularly if there are seasonal variations in contaminant concentrations or if unusually dry or wet 

weather has upset steady-state conditions (Quirindongo, 2007).

507 EIP presents September 2005 through March 2010 data for high arsenic concentrations in MW-217A and MW218A, the farthest down-gradient wells at the eastern perimeter of the Hatfield site; the few results for the same 

period available for MW-216A, the lone designated up-gradient well for the ash leachate impoundment, contained 

far lower concentrations of arsenic. Similarly, other parameters recognized as ash indicator parameters (e.g., boron, 

molybdenum and selenium) were found at much higher levels at MW-217A and MW-218A than at MW-216A 

during the same sampling interval. The high concentrations of arsenic, boron, molybdenum and selenium at the 

down-gradient wells MW-217A and MW-218A were laboratory-measured in groundwater with very alkaline pH 

values (around 10). In the very same sampling events, laboratory pH values at the up-gradient MW-216A well were 

5.7 to 5.8.

508 EPA HAL for boron is 1.0 ppm, and the RAL for molybdenum is 10 ppb. 

509 EIP’s (2010a) claim that total arsenic has been measured at 342 times the MCL, and boron and molybdenum 

have been measured at 5 times and 33 times their LTHAs, respectively, in contaminated groundwater 1,500 feet 

downgradient of the landfill, indicating that contamination has traveled beyond 1,000 feet from the waste boundary.
I. CCR Proven Damage Cases December 2014

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disposal in the area. PADEP claims510 that (i) boron is sampled annually in the wells and surface water 

points. At all monitored locations the boron levels meet Pennsylvania's Act 2 clean-up standards for nonuse aquifers, 600,000 ppb, and (ii) The Superfund Removal Action levels (RAL) referenced in the 

citizens’ comment are established for "Contaminated Drinking Water Sites", and EPA’s HAL are 

drinking water standards which trigger treatment requirements for drinking water; whereas at the point in 

which the sample was taken the water is not used for public consumption and therefore the HAL and RAL 

do not apply.

EIP (2010a) also notes that discharges from the leachate collection system into nearby tributaries have 

polluted surface water offsite and in Whiteley Creek; and even after the NPDES permit violation was 

noted in 2001, there were continued violations of aluminum, manganese, and thallium over permit 

effluent limits,511 resulting in a PADEP Consent Order.512 EIP (2010a) specifies that surface water 

monitoring in the nearby tributary and downstream in Whiteley Creek show elevated levels for a number 

of constituents over their upstream values, including Pennsylvania Water Quality Criteria (WQC)

exceedances for boron in the tributary.513 EIP (2010a) notes that these elevated concentrations generally 

mirror the elevated concentrations measured directly in the discharge sump as well as the groundwater 

concentrations. EIP cites four monitoring reports from December, 2009 and May, September and 

December of 2010, which also establish that several coal ash contaminants have been discharging at high 

levels from SP-1, a spring at the far eastern perimeter of the Hatfield Landfill property, some 200 meters 

east of and downhill from MW-218A.514 Water that discharges from SP-1 flows eastward into an 

unnamed tributary that discharges into the Monongahela River.

 

510 Comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0446. 

511 For instance, according to Quirindongo (2007), there have been three violations of the 0.0042 ppm thallium limit 

at the landfill’s outfall since this limit became effective in September 2003. In addition, data submitted to PADEP 

by Allegheny Energy in May 2003 show that ten of the 24 effluent samples taken from August 2002 to April 2003 

were above 0.0042 ppm. Since those samples predated the new permit limit, the exceedances are not permit 

violations. However, they show that landfill leachate frequently contains excessive thallium levels.

512 Daily maximum levels for thallium, aluminum, and manganese were 0.0062 mg/L, 3.459 mg/L, and 2.623 mg/L, 

respectively, as compared to daily discharge permit limits of 0.0042 mg/L, 1.2 mg/L, and 2.4 mg/L, respectively. 

PADEP (2011) claims that the thallium-limit violations are attributed to the proximity of the effluent limit to the 

method detection limit (MDL) of the analytical procedure. PADEP claims that once Allegheny Energy has 

employed a more sensitive analytical method with a lower MDL, there have been no further thallium limit 

violations.

513 Comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0446.

514 The contaminants include: (i) selenium, the dissolved concentrations of which have risen from 7.0 μg/L in 

December, 2009, to 115 μg/L in December, 2010; (ii) chromium, the dissolved concentrations of which rose from 5 

μg/L in December, 2009 to 162 μg/L in December, 2010 [although Hatfield monitoring has never analyzed for 

hexavalent chromium, the December 2010 value is more than 16 times higher than the PA CCC and more than 10 

times higher than the PA Criterion Maximum Concentration (CMC, the water quality standard for acute toxicity to 

aquatic life) for hexavalent chromium, the species of chromium most likely to be soluble in water with the pH and 

oxygen content of the water at SP-1]; (iii) boron, the dissolved concentrations of which rose from 4.644 mg/L in 

December, 2009, to 27.840 mg/L in May, 2010, 31.210 mg/L in September, 2010 and 29.460 mg/L in December, 

2010. (The September, 2010 concentration is more than 19 times higher than the PA CCC for boron of 1.6 mg/L and 

nearly 4 times higher than the PA CMC for boron of 8.1 mg/L); (iv) molybdenum, the dissolved concentrations of 

which rose from 56 μg/L in December, 2009, to 852 μg/L in September, 2010 before declining to 668 μg/L in 

December, 2010 [The September and December, 2010 molybdenum levels are more than three-to four times higher 

than the federal Drinking Water Equivalent Level (200 μg/L) for molybdenum]; (v) total dissolved solid (TDS) 

concentrations, which increased from 634 mg/L in December, 2009 to 2,480 mg/L in September, 2010, before 

declining to 2,104 mg/L in December 2010; and (vi) laboratory-measured pH, which rose from 7.6 in December, 

2009 to 9.16 in September, 2010, and 9.07 in December, 2010 (these latter three pH values exceed the upper limit of 

the federal secondary drinking water standard for pH in drinking water of 8.5 units and the upper limit of the PA 

water quality criterion for all surface waters in Pennsylvania of 9.0 units).
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PADEP counters515 that the wetland treatment system has, with the exception of boron, treated 

successfully all the cited constituents;516 and that there are no WQC CCCs established by PADEP’s Water 

Quality program for the unnamed tributary because it is intermittent; also, it is not a source of public 

drinking water; and that there is no Pennsylvania WQC for molybdenum. Finally, discharge monitoring 

reports indicate that the facility’s discharge complies with the NPDES’ permit discharge limitations. 

PADEP517 does not deny exceedances of boron, manganese, sulfate and TDS, but attributes them to Acid 

Mine Drainage (AMD) associated with past coal mining activities in the landfill’s watershed. PADEP 

claims that this legacy is responsible for impacting both groundwater and surface water, as reflected in the 

composition of the shallow, “mine spoil” aquifer, consistent with the conclusions reached in the 

groundwater assessment performed by Allegheny Energy in the 1990s.

In response to PADEP’s contention about the impact of coal mining legacy, EIP presents 

alkalinity/acidity and pH data from four monitoring wells in the Hartley Mine (MW-1 and MW-2, 

required by the mine’s ash placement operation, and MW-206A and MW-207A, required as up-gradient 

monitoring points for the coal ash landfill): while they reflect some effects of acidity, these data trends do 

not suggest strong AMD impacts from previous mining occurring in the mine spoil water from 1988 

through 2000, when and where one would most likely find it. EIP also presents constituent concentration 

data that establish that discharges of alkaline coal ash leachate from the landfill, not AMD, have been 

causing exceedances of water quality criteria in the landfill receiving stream and degrading stream waters 

in the watershed of Little Whiteley Creek well beyond pollutant contributions coming from Little 

Whiteley Creek upstream of this tributary (and attributed by PADEP to mining legacy) for some time. 

These data also demonstrate that while the artificial wetland treatment system has improved the water 

quality of the landfill’s effluent after 2001 for some parameters, violations of water quality criteria for 

boron and selenium and proposed criteria for molybdenum have continued afterwards in the landfill 

receiving stream.518

Responding to an August 20, 1997Allegheny Energy’s application to modify the permit for the Hatfield 

Landfill, where the Utility acknowledged high boron attributed to fly ash that had been found in both upgradient and down-gradient groundwater samples, PADEP brushed off the Utility’s admission by stating 

that boron is a prominent surface coal mining indicator parameter in groundwater; “therefore, the codisposal of fly ash with coal refuse and mine spoil suggests that boron would be present but not 

necessarily indicate those values associated with fly ash.” However, not only is this a factually

 

515 PADEP (2011). FirstEnergy Corp, in its comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-

0392-0286, cites PADEP in stating that EIP’s (2010a) claim about surface water exceeding WQC is not applicable 

because these `surface water' monitoring points include supernatant within the impoundment and are managed 

through permitted industrial discharges from the facility.

516 According to Quirindongo (2007), before the wetland treatment system was constructed in the spring of 2001, 

surface water also showed elevated arsenic levels. Four quarterly tests in the unnamed tributary to Little Whiteley 

Creek in 2000 found concentrations from 2.0 to 12.3 ppb, with an average of 7.1 ppb. The sample that contained 

12.3 ppb exceeded the EPA MCL (10 ppb) for arsenic. Arsenic concentrations in the tributary have since decreased, 

but monitoring is now done annually, not quarterly as in 2000. Despite the previous elevated arsenic levels in the 

tributary, PADEP has not required Hatfield’s Ferry to monitor its water discharges for arsenic.

517 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0201.

518 In the March 2008 Corrective Action Plan, PADEP actually concedes that the observed exceedances are 

associated with fly ash, and not with AMD, by stating: “Exceedances in 2007 were caused by newly opened active 

areas of the Landfill being exposed to erosion. Best management practices (BMPs) were implemented or maintained 

to help control fly ash sediment in the surface runoff conveyances. However, after the BMPs were installed, the 

magnitude of flow overwhelmed these devices when the rainfall intensity exceeded the 10-year, one-hour storm.”
I. CCR Proven Damage Cases December 2014

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uncorroborated statement,519 but according to EIP, no coal mining permit issued by PADEP with or 

without the use of coal ash placement before December 2010 even required regular monitoring for boron 

in groundwater or surface water.

Ecologic impact: EIP (2010a) also notes that a 2006 habitat and stream survey undertaken by a third party 

consultant indicated that CCR leachate degraded the two streams closest to the landfill. It notes that the 

tributary, which receives the (previously untreated) leachate discharge and the closest tributary to the 

Phase 2 landfill, both have had impaired benthic macro-invertebrate populations, and now have 

populations only of organisms resistant to pollution. Some sections of these streams exhibited “concreted 

bottoms” due to deposition of chemical compounds. The report concluded that conditions in these streams 

were indicative of “polluted water and disturbed habitat”.520 PADEP counters521 that according to their 

consultant’s report, the low benthic counts were a result of the stream size, bank erosion, and habitat 

disturbance and not due to leachate impact. EIP challenges this assertion by demonstrating that the 

information compiled in two studies by the landfill’s consultants522 demonstrates that conditions for 

benthic life have been impaired in these surface waters beyond the landfill’s property line as a result of 

the discharges.

Evaluation against Proven Damage Criteria523

 

519 E.g., boron is not identified even once as such a parameter in Coal Ash Beneficial Use in Mine Reclamation and 

Mine Drainage Remediation in Pennsylvania, published jointly by PADEP and the Pennsylvania State University’s 

Materials Research Institute in 2004 and considered to be PADEP’s most authoritative source on use of coal ash in 

mine settings. Moreover, Chapter 10 of this guide, “Soil Additives and Soil Amendments” repeatedly discusses the 

benefits of using coal ash as a soil amendment for mine soils and spoils to supply boron as a missing micronutrient 

needed for plant growth but cautions that over application of boron in fly ash can quickly become phytotoxic to 

plants.

520 Lemly (2010) and references therein. Lemly estimated the monetized value of the damage at $6 million.

521 PADEP (2011)

522 Namely, an “independent study on the surface-water quality in Little Whiteley Creek” conducted for Allegheny 

Energy in May 1994 by the University of Maryland Center for Environmental and Estuarine Studies (UMCEES), 

and a benthic macroinvertebrate study conducted by GAI for Allegheny Energy on four streams emanating from the 

landfill in 2001. For instance, of the four unnamed tributaries studied by GAI, the most degraded conditions were 

found in ‘Tributary C’, where the “concreted” condition of the substrate in this “perennial stream” was more 

extensive than in ‘Tributary B’. According to the study, the source of the precipitates causing this condition was 

most likely the discharges from the landfill’s sedimentation/treatment pond.

523 ICF (2010a).

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels (MCLs) 

or other health-based standards measured in 

groundwater at sufficient distance from the 

waste management unit to indicate that 

hazardous constituents have migrated to the 

extent that they could cause human health 

concerns

 Onsite groundwater data exceeded primary EPA MCL 

for arsenic. 

 Onsite groundwater data exceeded the EPA Lifetime 

Health Advisory for boron and molybdenum. 

 Onsite groundwater data exceeded EPA SMCLs for 

sulfate, manganese, and TDS.

 No offsite groundwater data are available.

Criterion 2: Where a scientific study provides 

documented evidence of another type of 

 Surface water monitoring indicates elevated levels of 

contaminants compared to upstream values, including 

boron over the PA WQC. 
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Other Considerations:

 There are seven private drinking water wells and one public drinking water well within a twomile radius of the Hatfield’s Ferry CCR disposal areas. 

 In EPA (2007), Table 2, this site is assessed as ‘Indeterminate’.

Resolution: A mitigation measure implemented in 2001 provided a passive wetland treatment system for 

the CCR leachate. A Consent Order and Agreement (COA) was issued by PADEP in March 2008 to 

address NPDES exceedances for aluminum, manganese, and thallium, which Allegheny Energy indicates, 

and PADEP confirms, are the result of leachate overflow.524 However, there are no permit limits for 

selenium.525 PADEP received a corrective action plan (CAP) from Allegheny Energy in September 

2008,526 which stated that the permit exceedances were due to leachate overflows from the sedimentation 

basin due to force main malfunctions, storm-water containing fly ash during heavy rains, and the inherent 

“analytical result variance” of the thallium analytical method itself. Currently, the CAP is being 

implemented. The CAP also requires fourteen wells and four surface water points around the Hatfield’s 

Ferry disposal facility to be sampled by Allegheny Energy.

As of October 2009, the landfill had been expanded by 106 acres (Phase 3) and the addition has a 

composite (double synthetic) liner system designed to reduce leachate to shallow groundwater, and a 

lined leachate storage impoundment.527 The older Phase 1 and 2 sections of the landfill have been closed. 

 

524 The COA levied a $20,645 civil penalty, established stipulated penalties for future violations, and required 

Allegheny Energy to produce a Corrective Action Plan explaining the root causes of the effluent violations and the 

measures it will take to prevent their recurrence. FirstEnergy Corp., in its comment to the October 2011 NODA 

docket: EPA-HQ-RCRA-2011-0392-0286, states that exceedances were from November 2003 to August 2007.

525 According to Citizens Coal Council and Environmental Integrity Project’s appeal (2009), the challenged limit 

that PADEP intended to set up for selenium in the NPDES permit amendment is higher than any discharge reported 

by the power plants recently surveyed by EPA. Indeed, the very worst performer among the plants providing data 

from an outfall that solely discharges FGD scrubber blowdown, and indeed the worst performer in general of all 86 

surveyed plants is the Big Bend Power Station in Florida. Big Bend discharges 2.04 milligrams mg/L of selenium 

daily. The technology-based effluent limits (TBEL) that PADEP established for selenium at Hatfield’s Ferry is 4 

mg/L — nearly double the reported discharges at Big Bend.

526 CCB Leachate Collection and Treatment System Corrective Action Plan, Hatfield’s Ferry Power Station, 

Monongahela Township, Greene County, NPDES Permit No. PA0002941 – Outfall 007. Ibid. 

527 From the top down, the Class 1 liner system consists of a protective cover, leachate collection system, 60 mil 

HDPE liner over a geocomposite drainage net leak detection system, another 60 mil HDPE liner over geosynthetic 

clay liner (GCL), and 6" of subbase material. 

damage to human health or the environment 

(e.g., ecological damage)

 Effluent samples from the wetland treatment system 

indicate violations of aluminum, manganese, and 

thallium over NPDES permit effluent limits.

 A habitat and stream survey found that the two 

tributaries closest to the landfills, one of which receives 

the leachate discharge, had impacted populations of 

benthic macro-invertebrates. 

Criterion 3: Where there has been an 

administrative ruling or court decision with an 

explicit finding of specific damage to human 

health or the environment

 PADEP entered into a Consent Order and Agreement 

(COA) with Allegheny Energy in 2008 because of 

violations of the NPDES permit effluent limits for 

aluminum, manganese, and thallium. The COA required 

a corrective action plan and once approved allows two 

years to implement corrective actions for the illegal 

discharges. 
I. CCR Proven Damage Cases December 2014

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Leachate from the entire landfill is still being treated using the passive wetland treatment system. The 

effectiveness of these measures in meeting NPDES permit limits remains unclear, and will be understood 

only through continued chemical and biological monitoring of the Hatfield’s site.528

Following posting of the Hatfield’s Ferry NPDES Permit amendment (PA0002941) on December 30, 

2008, in March 2009 citizen groups appealed to the Pennsylvania Environmental Hearing Board (EHB)

claiming that the amendment authorizes AES to discharge waste water containing heavy metals such as 

mercury, selenium, cadmium, and lead into a stretch of the Monongahela River that provides drinking

water to over 90,000 people.529

In March, 2011, the State’s EHB denied Allegheny Company’s Motion for Summary Judgment to exempt 

it from PADEP’s NPDES Permit requirement to monitor the discharge of the Plant’s FGD scrubber 

facility wastewater plant‘s effluents for sulfates and TDS.530

ICF (2010a) Rationale: Potential Damage, pending access to original report (GAI Consultants) for 

consideration of proven ecological damage.<Groundwater exceedances of the primary EPA MCL for 

arsenic, the EPA Lifetime Health Advisory for boron and molybdenum, and the SMCL for sulfate, 

manganese and TDS have been found onsite. Although a habitat and stream survey undertaken by a third 

party consultant indicated impaired benthic macro-invertebrate populations in the two tributaries nearest 

the landfill (one of which receives leachate discharge), the study could not be located and reviewed. The 

PADEP entered a COA with Allegheny Energy because of violations of NPDES limits for three 

contaminants and required corrective actions; however the COA did not indicate a finding of specific 

damage to human health or the environment.>

Postscript: The Utility claims that based on the data reviewed it cannot be concluded that the levels of 

boron and molybdenum are resulting from coal ash leachate, but are rather the result of coal mining 

legacy. Furthermore, the Site’s groundwater and surface water limits are being met, and the Site is in 

compliance with State permit provisions regarding groundwater monitoring. However, PADEP’s claim 

that mining legacy contaminated both groundwater and surface water, as reflected in the composition of 

the shallow, “mine spoil” aquifer, consistent with the conclusions reached in the groundwater assessment 

performed by Allegheny Energy in the 1990s - is incongruent with the alkaline pH values documented in 

several down-gradient monitoring wells, and with the significantly higher levels of contaminants in 

down-gradient wells as compared to the levels of the corresponding contaminants in up-gradient 

monitoring wells. 

USWAG claims531 that this case does not meet the criteria for a damage case because the information 

provided for the site does not contain any documented evidence of off‐site groundwater monitoring data 

 

528 Lemly (ibid). 

529 The Plant’s newly installed FGD scrubbers-discharge of 475,000 gallons per day of blowdown into the 

Monongahela River. In Citizens Coal Council and EIP vs. PADEP (2009), Appellants challenged the failure of 

PADEP to set protective technology-based effluent limits (TBELs) as the federal Clean Water Act (33 U.S.C. §§ 

1251 et seq.) and the Pennsylvania Clean Streams Act (35 P.S. §§ 691.5 et seq.) require.

530 EIP vs. Allegheny (ibid). Allegheny Energy’s contention was that its facility does not fall within the definition of 

a “new discharger” because it discharges at an existing outfall on the Monongahela River. According to Allegheny 

Energy Supply (2012), “in April 2012, a joint motion was filed by the parties informing the EHB of a proposed 

settlement and seeking the lifting of a portion of the EHB's stay of certain terms of the Hatfield's Ferry Plant's 

NPDES permit. The joint motion was granted by the EHB on April 27, 2012. The parties intend to memorialize the 

settlement in a Consent Decree to be lodged with the Commonwealth Court of Pennsylvania. The Consent Decree, if 

entered by the Commonwealth Court of Pennsylvania, will resolve the disputes concerning the Hatfield's Ferry Plant

NPDES permit, including TDS and sulfate limits.”

531 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0211
I. CCR Proven Damage Cases December 2014

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or off‐site groundwater monitoring data showing exceedances of specified health‐ based criteria. This 

claim does not comport with EIP’s (2010a and 2012) claim that groundwater monitoring well 

exceedances since 2005 have included arsenic above the primary EPA MCL in three wells hundreds of 

yards south and east of the landfill, with dissolved concentrations more than x 11 the MCL; and with the 

fact that in March 2008, PADEP entered a COA with Allegheny Energy that required corrective actions 

because of violations of NPDES limits for three contaminants (thallium, aluminum, and manganese), 

which Allegheny Energy and PADEP agree, were the result of CCR leachate overflow.

References

US EPA (No date): Facility Registry System, Facility Detail Report, Hatfield Power Station; accessed 

Online June 2012. 

http://iaspub.epa.gov/enviro/fii_query_dtl.disp_program_facility?p_registry_id=110017437148

Herald Standard (2013): Hatfield's Ferry Power Station quietly closes for good. Herald Standard, October 

20, 2013, updated: December 30, 2013. Accessed Online August 2014.

http://www.heraldstandard.com/new_today/hatfield-s-ferry-power-station-quietly-closes-forgood/article_cd0133e1-9adb-58c2-8f8d-66769de34835.html

Grounded (2013): FirstEnergy: Hatfield's Ferry similar to Harrison, but too expensive to run. Grounded, 

A State Journal Energy Blog, July 9, 2013, Updated: August 8, 2013. Accessed Online August 2014.

http://www.statejournal.com/story/22794765/firstenergy-hatfields-ferry-similar-to-harrison-but-tooexpensive-to-run

Allegheny Energy Supply (2012): Allegheny Energy Supply Company, LLC, Unaudited Consolidated 

Interim Financial Statements for the Quarter ended March 31, 2012. Accessed Online November 2012.

http://emma.msrb.org/EP650748-EP508447-.pdf

Frontier Business Edge (2012): Combining gas with coal could extend life of coal-fired power plants. 

Frontier Business Edge, September 28, 2012, updated October 01, 2012. Accessed Online August 2014.

http://www.cleveland.com/business/index.ssf/2012/09/combining_gas_with_coal_could.html

EIP vs. Allegheny (2011): Environmental Integrity Project and Citizens Coal Company vs. 

Commonwealth of Pennsylvania DEP and Allegheny Energy, Opinion and Order for Summary Judgment, 

Pennsylvania Environmental Hearing Board (EHB) Docket No. 2009-039-R (Consolidated with 2009-

006-R), March 21, 2011. Accessed Online November 2012. 

http://earthjustice.org/sites/default/files/HatfieldsFerrySummaryJudgment.pdf

PADEP (2011): 2011 NODA: EPA-HQ-RCRA-2011-0392-0201, Review of the Environmental Integrity 

Project, EarthJustice and Sierra Club Report: In Harm’s Way: Lack of Federal Coal Ash Regulations 

Endangers Americans and Their Environment, PADEP Southwestern region. Accessed Online June 2012. 

http://files.dep.state.pa.us/AboutDEP/AboutDEPPortalFiles/RemarksAndTestimonies/CoalAsh/LittleBlue

andHatfield10-27-11.pdf

EIP (2010a): In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their 

Environment, Thirty-Nine New Damage Cases of Contamination from Improperly Disposed Coal 

Combustion Waste, Case #30. The Environmental Integrity Project, EarthJustice and Sierra Club, August 

26, 2010.

http://www.environmentalintegrity.org/news_reports/08_26_10.php

ICF (2010a): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix C, Case #30. ICF, 10/2010.
I. CCR Proven Damage Cases December 2014

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Lemly (2010): The Cost of Poisoned Fish and Wildlife, A White Paper on Environmental Damage from 

Coal Combustion Waste: A. Dennis Lemly, EPA Docket ID No. EPA–HQ–RCRA–2009–0640, 

December 15, 2010. Accessed Online June 2012.

http://prairierivers.org/wp-content/uploads/2012/03/Lemly-2010-Environmental-Damage-from-CCW.pdf

Citizens Coal Council and EIP vs. PADEP (2009): Citizens Coal Council and Environmental Integrity 

Project vs. Commonwealth of Pennsylvania Department of Environmental Protection, Objections to 

Issuance of Permit Amendment PA0002941, before the Commonwealth of Pennsylvania Environmental 

Hearing Board, Harrisburg, Pennsylvania, March 16, 2009. Accessed Online November 2012.

http://earthjustice.org/sites/default/files/library/legal_docs/hatsfield-ferrynotice-of-appeal-final.pdf

EPA (2007): CCW Damage Case Assessments, U.S. Environmental Protection Agency Office of Solid 

Waste, July 9, 2007.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

Quirindongo (2007): Coal Combustion Waste in Pennsylvania: The Case of the Hatfield’s Ferry Landfill. 

Quirindongo, Mayra, Natural Resource Defense Council. 2007. Accessed Online June 2012.

http://www.nrdc.org/health/effects/coal/coalpa.pdf

Allegheny Power (1996): Application for Permit Modification PADEP Solid Waste Permit No. 300370, 

Allegheny Power Hatfield Power Station Disposal Site, Monongahela Township, Greene County, 

Pennsylvania, October 1996 (Revision 1: August 20, 1997; Revision 2: December 16, 1997). 

PR22. Martins Creek Power Plant 2005 Release, Mount Bethel Township, Northampton 

County, Pennsylvania

Type: Surface Impoundment Dike Breach and a Disused Surface Impoundment.

Brief Description: On August 23, 2005, a dam confining a 37-acre CCR surface impoundment (Basin 

No. 4)532 experienced a failure of a stop log in its outlet structure.533 The breached impoundment was a 

depository of fly- and bottom ash from Pennsylvania’s Power and Light (PPL) Martins Creek Power 

Plant.534 In violation of the State's solid waste disposal permit, 0.5 million cubic yards (about 100 million 

 

532 According to PPL (2009), Basin No. 4 was commissioned in 1989, and its total storage capacity is estimated at 

12.75 million gallons above grade. The maximum height of the impoundment dike is 43 feet while the total depth of 

the impoundment is 65 feet (22 feet below grade). Basin No. 4 is lined with a 36-mil, synthetic, reinforced-rubber 

(Hypalon) liner system. The impoundment holds predominantly fly ash with incidental amounts of soils, rocks, 

concrete, and plant residual waste. The volume of waste in the impoundment was 1,038,727 tons in accordance with 

the last submittal to PADEP on June 30, 2008. According to Dewberry & Davis LLC (2009), Basin No. 4 is 

regulated by the PA DEP Bureau of Waste Management. During active operation, the basin was regulated as a local, 

captive Class II residual waste disposal impoundment under PA DEP Permit No. 301256, which was effective on 

October 30, 2000 and expired on June 6, 2009.

533 According to Dewberry & Davis LLC (2009), the release resulted from the failure of stop log #2, which failed 

due to a fabrication defect, dating back to the original construction of the basin in the 1980s. Stop log #2 was the 

second from the bottom of a stack of approximately 40 logs. The fabrication defects in this log were not identified 

by the periodic dam inspections. Once the log failed, there was no shutoff valve in the discharge pipe or other 

secondary barrier to prevent the subsequent release of water and ash.

534 The Plant is located at 6605 Foul Rift Road, Bangor, PA 18013, about 15 miles north of Easton, Pennsylvania. 

The Plant’s two coal-fired generating units, each capable of producing 150 MW (commissioned in 1954 and 1956), 

were closed and demolished between 2007 and 2009; and the two remaining units (came on line in the 1970s, total 
I. CCR Proven Damage Cases December 2014

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gallon) of coal-ash and contaminated water flowed out through the discharge piping and from various 

associated manholes. The slurry flowed over about 10 acres of surrounding cornfields, a road near the 

basin, and into the Oughoughton Creek and Delaware River, covering the bottom and banks of the 

Delaware River for approximately 2.4 km downstream.535 The release was completely stopped on August 

27, 2005,536 and PPL began an immediate cleanup effort including removal of the fly ash from the fields, 

Oughoughton Creek, and the Delaware River. Coal ash also covered about 20 acres of plant property after 

being forced through a manhole.537

Impact: Groundwater: As an emergency measure, the coal ash slurry ordinarily pumped from plant 

operations to Basin No. 4 was diverted to the smaller, older, unlined and the partially closed Basin No. 1, 

located adjacent to the Delaware River that had been used for short term storage of bottom ash and 

occasional emergency fly ash disposal.538 The spill resulted in the exceedances of selenium, chromium, 

and iron in on-site groundwater. Selenium levels up to 70 ppb were measured in MW 1-6, a monitoring 

groundwater well in Basin No. 1, and reached a maximum of 126 ppb by December 2005.539 According to 

 

generation capacity: 1690 MW) are fired by either natural gas or oil (http://www.pplweb.com/pplgeneration/martins-creek.aspx). According to Dewberry & Davis LLC (2009), both the power plant and the ash 

basins overlie carbonate bedrock and many sinkholes have been mapped in the region. Basin No. 4 was located in an 

area believed to be free of sinkhole hazards. Nevertheless, a synthetic liner was incorporated into the design to 

reduce the risk of seepage from the basin opening up sinkholes, and a sinkhole contingency plan was developed. 

During construction, shallow bedrock was encountered in the northeast part of the basin, and some sinkholes opened 

up; these were treated by an extensive program of grouting. No sinkholes opened up during the operational history 

of the basin. For additional information on the Site’s geology, see the Supplemental Information volume compiled 

by Dewberry & Davis LLC (2009), at http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/mtnscreek-sup.pdf.

535 According to NJDEP (2005), the part of the Delaware River on which the Martins Creek plant is located was 

designated by Congress as the Lower Delaware Wild and Scenic River in 2000.

536 http://www.prnewswire.com/news-releases/leak-stopped-from-ash-basin-at-ppls-martins-creek-power-plant55016797.html

537 Knoxnews.com (2009).

538 According to Dewberry & Davis LLC (2009), Ash Basin No. 1, constructed in 1955, has a surface area of 

approximately 23 acres, and is regulated by the PADEP Bureau of Waste Management. During active operation, the 

basin was regulated as a local, captive Class II residual waste disposal impoundment under PADEP Permit No. 

301256, which was effective on October 30, 2000 and expired on August 12, 2009. Basin No. 1 is an unlined basin 

that received predominantly fly ash and bottom ash. The basin has been retired and is generally overgrown with 

vegetation, including some sizable trees, and with the exception of the southern portion, closed in 1999, it is not yet 

closed; however, a closure plan has been developed by PPL, and at the time of the report was being reviewed by 

PADEP. There are two additional closed ash-basins: No. 2 and No. 3. None of these two basins has been implicated 

in impact to groundwater; however, according to The Morning Call (1989), apparently one of these basins, which 

was almost full and was scheduled to be replaced in the fall of 1989, was the source of an undetermined amount of 

coal ash that spilled into the Delaware River in April 1989. PPL speculated that heavy rain and wind altered the path 

of water flowing through the lagoon stirring up mounds of bottom ash. Checks done by PPL and by PADER 

(PADEP’s predecessor) showed a negligible accumulation of ash on the ecologically sensitive Delaware River bed, 

requiring no cleanup there or along the river bank. The spill's primary effect was a cloudy plume that stretched a 

mile down the river at its peak.

539 Bryce Payne/EarthJustice comment to the docket: EPA-HQ-RCRA-2009-0640-6313. The initiation of emergency 

ash pumping into Basin 1 shortly after the spill caused rapid increases in ground water selenium at the Basin’s North 

End (MW 1-8 and 1-9) and the South End (MW 1-6) monitoring wells, but had minimal effects at intervening 

monitoring well, MW 1-7, that lies between the North and South end wells. Compared to the first selenium rise 

maxima of 60 to 76 μg/L at the North and South End wells, the maximum selenium measured in MW 1-7 was 13.7 

μg/mL (September 9, 2005) and decreased rapidly to < 4 μg/mL (September 23, 2005). Payne infers that when 

emergency pumping of ash slurry into Basin 1 began, there was a rapid rise in ground water selenium under the 

North End that could only have occurred as a consequence of rapid penetration of the slurry water to the sampling 

depths of the two adjacent monitoring wells (MW 1-8 and 1-9). About 1.8 million gallons of water per day drained
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PPL Services Corporation,540 the well results around Basins No. 1 and No. 4 show no exceedances of 

chromium and iron standards since the 2005 ash release. In fact, the highest chromium level was 0.005 

mg/L, 20 times below the MCL (0.1 mg/L).

PPL concedes selenium exceedances in monitoring wells MW1-8 and MW 1-6,541 but claims that 

selenium exceedances in MW 1-6 were only temporary, because they returned to levels below the MCL 

by the third quarter of 2008.542 EPA concluded543 in its preliminary assessment of the response actions 

that based on its own evaluation of current analytical results of samples collected downstream of the 

release, no further federal action at the site was warranted at that time. EPA's evaluation of the 

 

from Basin 1 every day during the emergency pumping and subsequent drain down period. A second rise in ground 

water selenium, confined to the South End of the basin (MW 1-6), began sometime after 12 October 2005, over a 

month after all pumping into the North End had stopped, and about a couple of weeks after all surface water had 

drained away. This October exceedance event in the South End raised the selenium concentrations to a maximum of 

126 μg/L, and lasted more than a year.

Based on the temporal sequence and spatial distribution of the two selenium peak events Payne 

hypothesized two different selenium mobilization and transport events. The September exceedance had been caused 

by the hydraulic conductivity of the structural vestiges of the two basins. Large veins of bottom ash extend from the 

far North to the far South End, veins that formed in channels left by an old dike breaching that predated construction 

of the dike that in 2005 separated the North and South Ends, and subsequent construction of other, then-buried, 

contiguous channels in the same areas. Outside the veins the ash fill is a stratified complex of distinct layers of 

bottom ash and fly ash. Those bottom ash veins and layers are capable of transmitting rapid water flow. This 

facilitated the rapid subsurface transmission of slurry water through the body of ash in the basin from the North to 

the South End, largely bypassing the area monitored by MW 1-7. 

As to the October exceedance, Payne infers that based on the estimated 1.8 million gallons per day drainage 

rate, depth of ash, and ash water holding capacity, it should have taken no more than four more days for the ash to 

have drained to field moisture capacity, leaving no water in the basin capable of flowing to the South End. 

Therefore, the second selenium peak simply could not have been due to a delayed flow of ash slurry water from the 

North End. Instead, it had to be due to selenium released from the fly ash in the basin, which is predominantly 

located in the South End. This is supported by the fact that water samples from a piezometer (PZ 1-17) near the 

center of the basin, but still in an area predominated by fly ash, also showed a delayed peak in selenium, much larger 

and later than the one in the South End well. 

According to PPL Services Corporation (Comment to the proposed CCR rule’s docket: EPA-HQ-RCRA-2009-

0640-9971), with the exception of MW 1-6, no other primary or secondary MCL exceedances associated with the 

temporary operation of Ash Basin No. 1 were observed in any other monitoring wells. This included the MW 1-12S 

that was installed 250 feet directly downgradient of MW 1-6, between MW 1-6 and the Delaware River, which is 

located downgradient of Basin #1. MW 1-12S was installed as the point of compliance well for the basin pursuant to 

PADEP’s Residual Waste Regulations. Based on PADEP’s regulations and the lack of an exceedance at the point of 

compliance wells, the plant was not required to take any abatement actions to respond to this temporary excursion of 

the selenium MCL in this monitoring well.

540 Comment to the proposed CCR rule’s docket: EPA-HQ-RCRA-2009-0640-9971.

541 PPL Pennsylvania comment to the docket: 

http://www.uswag.org/pdf/2010/CCR%20Comments/PPLPenna11192010.pdf

542 According to PPL Service Corporation (EPA-HQ-RCRA-2009-0640-9971), selenium levels in MW 1-6 returned 

to levels below the MCL by the first quarter of 2007. A spike was observed in the second quarter of 2008 due to a 

high precipitation event, but by the third quarter the selenium level returned to below the MCL and has remained 

below the MCL.

543 April 2006 EPA Cover Letter to Preliminary Assessment Report of the response actions in late 2005 and early 

2006. The preliminary assessment is a limited-scope investigation performed on every Comprehensive 

Environmental Response, Compensation, and Liability Information System (CERCLIS) site. CERCLIS is 

Superfund’s database of sites investigated under Superfund. The assessment was conducted in response to a 

September and October 2005 petitioning by the Delaware Riverkeeper Network. 

http://www.delawareriverkeeper.org/resources/PressReleases/USEPA%20Grants%20DRN%20Petition%20Concern

ing%20PPL%20Martins%20Creek%20Plant%2010-21-05.pdf. 
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groundwater analytical results from residential wells indicated that the fly ash release has not affected 

groundwater quality down-gradient of the site in Pennsylvania and New Jersey.

Surface water: Exceedances of Pennsylvania’s WQCs immediately after the release in the vicinity of the 

release area were noted for arsenic, lead, aluminum, and copper; exceedances of New Jersey’s WQCs 

immediately after the release were noted for arsenic (both upstream and downstream the Delaware River) 

and lead.544

The immediate impact involved the dislocation of at least 20 species of fish from the spill zone and 

smothering or poisoning of benthic invertebrates from ash-related contaminants. In the longer term (6-12 

months), suction dredging activities re-suspended the ash, exacerbated fish dislocation, and removed 

benthic invertebrates from the river bottom. From August 2005 to April 2006, the boating access ramp on 

the Delaware River at the Martins Creek site was closed to the public.545 Four years after the spill, 

concerns were expressed over possible long-term impacts to the American shad (Alosa Sapidissima).

546

 

Whereas a Pennsylvania Fish and Boat Commission report (2010) show a significant decline in returning 

shad in the Delaware River in the first decade of the millennium, it is not evident that this trend has been 

affected by the CCR spill incident. 

For a succinct summary of the surface water sampling during and after the accidental CCR release ended 

on August 26, 2005,547 see PPL Services Corporation’s comment to the proposed CCR rule’s docket.548

According to a utility-sponsored report,549 the emergency and Phases I-IV cleanup removed some 22,000 

cubic yards of ash from the Delaware River banks and the Oughoughton Creek, as well as 56.5 million 

gallons of slurry from the Delaware River. The remaining ash-related River’s channel deposits were 

depleted by the October 2005 high-flow event. After this high-flow event, arsenic was detected in less 

than one percent of the water column samples, and the downstream concentrations of metals associated 

with fly ash were indistinguishable from background after the October 2005 high flows. Elevated levels 

of arsenic, beryllium, mercury, selenium, and vanadium were detected in downstream River sediments, 

but their concentrations are claimed to not have posed a human health risk. River-bank sediments subject 

to ecologic screening showed that only a small proportion of the samples exceeded the NJDEP Lowest 

Effect Level (6 ppm) for arsenic. Based on these findings, industry claims550 that the spill event has 

resulted in no long-lasting ecologic damage. 

Previous Basis for Consideration: Scientific: Exceedances of MCLs and SMCLs in on-site ground 

water, and exceedances of Federal water quality criteria in off-site surface water; and Administrative:

PADEP issued a consent order for clean-up.

 

544 Delaware River Basin Commission (2006). Initially high levels of arsenic in the Delaware River water forced the 

Easton Water Treatment plant to temporarily suspend drawing water.

545 Lemly (2010) estimated the monetized value of the damage at $31.4 million.

546 For the life cycle and population restoration efforts of this anadromous species (that ascends rivers from the sea 

for breeding), see http://www.fws.gov/chesapeakebay/SHAD.HTM.

547 The results of this sampling are documented in the Phase IV report that was submitted to PADEP in June 2006, 

which documents all the remedial and assessment work completed in response to the release. Section 4 of the Phase 

IV report describes the results of surface water sampling that was conducted at various locations along the Delaware 

River between August 25 and December 21, 2005. Approximately 2,200 surface water samples from 16 locations 

were collected during this period.

548 EPA-HQ-RCRA-2009-0640-9971.

549 Arcadis (2007).

550 Midwest Generation Edison Mission Energy’s comment to the docket: EPA-HQ-RCRA-2009-0640-8244.
I. CCR Proven Damage Cases December 2014

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Resolution: On September 6, 2005, PADEP issued a Notice of Violation (NOV)/Consent Order for 

clean up, and fined PPL $1.5 million for polluting the Delaware River.

551 Employing suction dredging, 

PPL removed fly ash from the river bottom and the other impacted areas (the dry bed of Oughoughton 

Creek).552 The emergency response actions were completed in March 2006 and Phase IV of the cleanup 

and related impact studies were completed in September 2006.

553 A new stop-log assembly made of steelreinforced concrete was installed along with two shutoff valves in the outlet structure of Basin No. 4. In 

June 2007, PPL submitted the Phase IV Completion Report to PADEP summarizing the emergency 

response actions and follow-up river assessment work.554

In September 2007, the two coal-fired units at Martins Creek were permanently taken out of service and 

subject to demolishing.555 As of March 2009, Martins Creek Ash Basin No.4 was being dewatered and 

closed under PADEP’s oversight.556 While about 98 percent of the standing water was removed from the 

impoundment, storm water that still collects in the impoundment is periodically pumped from the 

impoundment and discharged under the facility's NPDES permit.557 The ash basin was closed and capped 

with a geosynthetic membrane. Final reclamation was to consist of a soil cap layer and vegetation.

558

ICF (2010) Rationale: Proven Damage. <Offsite MCL exceedances reported. Dam failure impacted 

river environment. Administrative orders for remediation due to surface water impacts.>

References

Federal Register/Vol. 75, No. 118/Monday, June 21, 2010/Hazardous and Solid Waste Management 

System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from 

 

551 According to PADEP (2007), on November 18, 2005, the Department filed a lawsuit against PPL in the 

Commonwealth Court of Pennsylvania (PADEP v. PPL Generation, 2005). The CO stipulated a Dismissal of 

PADEP’s lawsuit without prejudice to the Department to bring a claim for Natural Resource Damages should that be 

necessary once Phase IV of the cleanup has been completed and the Phase IV report has been submitted and 

reviewed by the Department.

552 Phase II Work Plan (2005), Phase III Work Plan (2005), and Blasland, Bouk & Lee (2006).

553 Arcadis (2007). According to Knoxnews.com (2009), PPL used temporary dams, allowing divers to vacuum the 

sludge from the riverbed.

554 According to EarthJustice (http://earthjustice.org/sites/default/files/pa-coal-ash-factsheet-0512.pdf), PPL has 

incurred $37 million in cleanup costs. The utility restarted ash basin No. 4 in December 2005 after completing 

repairs that included the replacement of the wood logs with versions made of steel-reinforced concrete. Shut-off 

valves were placed in the basin discharge pipe (The Morning Call, 2006).

555 The shut-down had been precipitated by an agreement (May 2003) between the New Jersey Department of 

Environmental Protection (NJDEP) and PPL Generation, LLC, to shut down two coal-fired units at its Martins 

Creek power plant by September 2007, to significantly reduce emissions of air pollutants from the plant. 

(http://www.nj.gov/dep/newsrel/releases/03_0077.htm). The demolition was completed in May 2009. 

(http://www.lehighvalleylive.com/slate-belt/index.ssf?/base/sports-0/1242360386222860.xml&coll=3)

556 http://www.docstoc.com/docs/4692132/WM-Letter-to-PPL-Martins-Creek-LLC. According to Dewberry & 

Davis LLC (2009), PPL noted that a number of monitoring wells were planned in impoundment No. 4 as part of the 

closure plan, although these had not yet been installed at the time of the 2009 annual dam stability inspection.

557 PPL (2009).

558 According to USWAG’s comment to the NODA, EPA-HQ-RCRA-2012-0028-0060 (pages 48-53), “The 

impoundment ceased receiving wastewater in January 2008, and the closure work began shortly thereafter with 

dewatering the basin and preparing the revised closure plan and permit modification applications. Capping, final soil 

grading and seeding of the entire ash impoundment were not completed until spring 2012. The vegetation had 

reached an acceptable level by end of 2012 so that the water runoff from the basin could be directed to the storm 

water outfall. By early 2013, all the remaining closure actions were completed, and by spring 2013, closure 

documentation was provided to state regulators for their final approvals of the closure. Regulators issued these final 

approvals in July 2013.” Whereas scheduled for 3-years, the actual closure took five years to complete.
I. CCR Proven Damage Cases December 2014

128

Electric Utilities (CCR Proposed Rule). Accessed Online July 2012. 

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2009-0640-0352

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases,

Appendix A, Case #25. ICF, 10/2010. 

Delaware River Basin Commission (2006): Assessment of Water Column Data Collected in Response to 

a Fly Ash Release on the Delaware River, Delaware River Basin Commission, John R. Yagecic, P.E., 

June 19, 2006. Accessed Online June 2012. 

http://www.nj.gov/drbc/library/documents/FlyAshAssessment_061906.pdf 

Lemly (2010): A White Paper on Environmental Damage from Coal Combustion Waste: The Cost of 

Poisoned Fish and Wildlife, A. Dennis Lemly, EPA Docket ID No. EPA–HQ–RCRA–2009–0640,

December 15, 2010. Accessed Online June 2012.

http://prairierivers.org/wp-content/uploads/2012/03/Lemly-2010-Environmental-Damage-from-CCW.pdf 

Phase II Work Plan (2005): Phase II – Delaware River Fly Ash Release Recovery Operations, Work plan 

Description of Portadam Installation & Fly Ash Removal, PPL – Martins Creek Steam Electric Station, 

Lower Mt. Bethel, PA, September 23, 2005. Accessed March 2012. 

http://www.pplweb.com/NR/rdonlyres/F1FC86F4-7998-4E77-BE99-

FE555DAC42D4/6428/PhaseIIReportFinal32006.pdf (No longer accessible)

Phase III Work Plan (2005): Phase III – Delaware River Fly Ash Release Recovery Operations, Work 

Plan Description - Dredging Operations, Fly Ash Impacted Riverbed Removal, PPL – Martins Creek 

Steam Electric Station, Lower Mt. Bethel, PA, December 12, 2005. Accessed March 2012. 

http://www.pplweb.com/NR/rdonlyres/6ADA3F40-D510-462B-99F8-

89B7C040D130/5778/PhaseIIIWorkplanPackageFinal121205.pdf (No longer accessible)

Blasland, Bouk & Lee (2006): Phase III Completion Report – PPL Martins Creek Steam electric Station, 

Lower Mount Bethel, Pennsylvania, Blasland, Bouk & Lee, May 2006. Accessed March 2012.

http://www.pplweb.com/NR/rdonlyres/B0685D90-BE5C-4711-B9F6-

F475A72E3848/8253/PhaseIIICompletionReport.pdf (No longer accessible)

Arcadis (2007): Phase IV Completion report, Martins Creek Steam Electric Station, Arcadis BBL, June 

2007. Accessed Online March 2012. http://www.pplweb.com/NR/rdonlyres/B5E3B686-D22B-4D97-

A5B4-670CDD966130/0/TableofContentsandExecutiveSummaryPhaseIVReport6807.pdf (No longer 

accessible)

PPL (2009): Response to Request for Information under Section 104 (e) of the Comprehensive 

Environmental Response, Compensation, and Liability Act, 42 U.S.c. 9604(e), Martins Creek Power 

Station, March 26, 2009. Accessed Online June 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/ppl-martins.pdf

PPL Newsroom (2007): PPL Retires Two Coal-Fired Units at Martins Creek Power Plant. Archived 

News, September 17, 2007. Accessed Online June 2012.

http://pplweb.mediaroom.com/index.php?s=12270&item=20329

Dewberry & Davis LLC (2009): Coal Combustion Waste Impoundment Dam Assessment Final Report, 

Martins Creek Steam Electric Station, PPL Generation, Bangor, Pennsylvania. Dewberry & Davis LLC. 

September 2009, revised December 9, 2009. Accessed Online June 2012.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/mtns-creek-final.pdf
I. CCR Proven Damage Cases December 2014

129

NJDEP (2005): New Jersey Department of Environmental Protection. 2005. Summary report: Sampling 

related to the Martins Creek PPL Corporation spill – Delaware River, August 2005 – Water column data.

Accessed Online July 2012. http://www.delawareriverkeeper.org/pdf/Fall05.pdf

Pennsylvania Fish and Boat Commission (2010): Spring spawning American shad migration in the 

Delaware River, 2010, June 7, 2010. Accessed Online July 2012. 

http://www.fish.state.pa.us/images/reports/2010bio/5x06_15shad.htm

PADEP (2007): Public Notice of Proposed Settlement--Delaware River Ash Spill Between the 

Pennsylvania Department of Environmental Protection, PPL Generation, LLC and PPL Martins Creek, 

LLC Lower Mount Bethel Township, Northampton County, in The Pennsylvania Bulletin, [37 Pa.B. 

1050], Land Recycling and Environmental Remediation, Under Act 2, 1995, Preamble 3, March 3, 2007. 

Accessed Online November 2013. 

http://www.pabulletin.com/secure/data/vol37/37-9/358d.html

PADEP v. PPL Generation (2005): Commonwealth of Pennsylvania, Department of Environmental 

Protection, Plaintiff, v. PPL Generation, LLC and PPL Martins Creek, LLC, Defendants. No. 584 MD 

2005, Civil Action, November 18, 2005. Accessed Online November 2013.

http://files.dep.state.pa.us/AboutDEP/Office%20of%20Chief%20Counsel/lib/ofcchiefcounsel/documents

/ppl_complaint.pdf

Knoxnews.com (2009): Leaks, water worries shared with Pa., but TVA breach bigger: Sizing up fly ash 

ponds' spills, by Scott Barker, Knoxnews.com, January 4, 2009. Accessed Online November 2013. 

http://www.knoxnews.com/news/2009/jan/04/sizing-up-fly-ash-ponds-spills/?print=1

The Morning Call (1989): PP&L Cleans Up Ash: State Says Delaware River Isn't Hurt, by Pete Leffler, 

The Morning Call – Lehigh’s Valley Newspaper, April 13, 1989. Accessed Online November 2013. 

http://articles.mcall.com/1989-04-13/news/2695292_1_delaware-river-pp-l-ash

PR23. South Carolina Electric & Gas (SCE&G) Canadys Plant, Walterboro, Colleton 

County, South Carolina

Type: Surface Impoundments.

Brief Description: This facility is a coal-fired power plant located along the Edisto River in the lower 

coastal plain of South Carolina.559 Coal combustion ash from the power plant is mixed with water and

managed in an ash storage pond. The facility operated an unlined, 80-acre surface impoundment from 

 

559 Highway 61, Canadys, SC 29433. The Plant is located about 50 miles WNW of Charleston and about 10 miles north of 

Walterboro, SC. According to SCE&G’s website (http://www.sceg.com/en/about-sceg/power-plants/fossil-fired/canadysstation/), the Canadys Plant generated approximately 420 megawatts of electricity by burning pulverized coal in three units. 

Operating since 1962, the plant burned approximately 130 tons of coal per hour when operating at full load. Canadys utilized a 

closed cycle cooling water system, resulting in a little impact on the nearby Edisto River and the surrounding wildlife. Following 

EPA’s promulgation of the Mercury and Air Toxics Standards (“MATS”) on December 21, 2011, Canady’s generation units 1, 2, 

and 3 could not meet the emission standards without further modifications to the units (SCANA, 2014). One of three coal-fired 

units at the Canadys plant (Unit #1) was retired in late 2012. SCE&G first had planned to convert the remaining two to natural 

gas-fired units as an interim measure before retiring them completely in 2017. However, after reevaluating system needs and 

analyzing the economics of the situation, the company decided to proceed with retiring the plant by the end of 2013:

http://www.sceg.com/en/news-room/current-news/sceg-accelerates-plans-to-retire-canadys-station.htm. Canadys Station’s two 

remaining units (Units #2 and #3) ceased generating electricity on November 6, 2013 ‘as part of the company’s goals to reduce

emissions, achieve a more balanced generation portfolio and comply with environmental regulations.
I. CCR Proven Damage Cases December 2014

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1974 to 1989. In 1982 arsenic was determined above the MCL and the plume was delineated as limited

but extending just beyond the initial site boundary. Nickel also has occasionally been found above a 

State standard in a single monitoring well adjacent to the old ash pond. Because of these results, South 

Carolina’s Department of Health and Environmental Control (DHEC) required the facility to delineate 

the extent of the contamination surrounding the old ash pond. The contamination was found to extend 

beyond the original property boundary of the facility, but the operator was allowed to buy neighboring 

property under State policy at the time.

The old surface impoundment was deactivated in 1989.

560 DHEC concluded that the contamination was 

not reaching the Edisto River and that its vertical extent was limited by a confining geologic unit 15 to 

30 feet below the property. In 1996, DHEC approved a mixing zone and compliance boundary with 

ongoing monitoring around the inactive impoundment.

A 95-acre ash pond lined with a bentonite slurry wall, separated by an internal dike from a small 

polishing pond, began operation in 1989.561 The slurry wall (maximum permeability: 1 x 10-6cm/sec) 

was installed as part of the new impoundment construction, which extends beyond the compliance 

boundary of the old impoundment. In 2000, further MCL exceedances of arsenic were reported at and 

outside the original compliance boundary of the active impoundment. Geophysical investigation 

revealed the exceedances were due to multiple failures points of the new surface impoundment slurry 

wall.562 Repairs to the slurry wall have been implemented and the mixing zone/compliance boundary 

expanded to include the new, active surface impoundment. Expanding the mixing zone and compliance 

boundary included requirements for groundwater monitoring at 15 wells, annual submittal of data, and 

comprehensive remedial system evaluation. As of 2008, arsenic (x4 the federal MCL) and selenium in 

groundwater were detected at the very edge of the expanded mixing zone.563

For the 2007 CCR damage case assessment, DHEC confirmed that arsenic contamination is attributable 

to CCR waste management units. DHEC also confirmed the limited likelihood of pathways to human 

receptors, given that groundwater supply wells in the region typically are drilled beneath the underlying 

confining geologic unit.

The site is located within the Coastal Plain of South Carolina. The sedimentary rocks of the Coastal 

Plain partly consist of sediment eroded from the Piedmont and Fall Line and partly of limestone 

generated by marine organisms and processes. A highly calcareous-cemented clay and silt-size stratum 

referred to as the Cooper Marl is typically located about 60 feet below the surface.564

Resolution: Under a consent agreement with DHEC, additional monitoring was put in place to 

delineate the extent of the new arsenic plume and the compliance boundary was extended to encompass 

the new impoundment. In 1996, a slurry wall was installed around the old, inactive impoundment.

Corrective measures completed in 2007 included installing a dewatering system at the old impoundment 

to eliminate infiltration. The water is pumped from the old impoundment to the new impoundment, 

where it is treated prior to discharge,565 and the old impoundment’s ash is being removed and sold to a 

cement company.566 A groundwater monitoring program is in effect.

An early 2011 request, with a zoning exception, for a 160 Acre clay-lined landfill, to replace the 

impoundment, was denied by the Colleton County of Board Zoning Appeals following a public 

meeting.567

Following the deactivation of Canadys’ two last generating units, the decommissioning of Canadys 

Station is expected to take a number of years and will involve demolishing the plant, closing all ash and 
I. CCR Proven Damage Cases December 2014

131

wastewater treatment ponds, and constructing a permitted dry ash storage facility onsite to store material 

which exceeds recycling demands.568

Previous Basis for Consideration:

569 Scientific: There are exceedances of the health-based standard 

for arsenic at this site. While there are no known human exposure points nearby, some recent 

exceedances have been detected outside an established regulatory boundary. 

ICF (2010) Rationale: Potential Damage. <Arsenic on onsite groundwater exceeded the MCL. No 

indication of offsite migration or potential impact to receptors.>

Postscript: Evidence for multiple off-site exceedances of primary MCLs (arsenic and nickel) that were 

not resolved by the purchase of the impacted properly by SCE&G and the expansion of the compliance 

boundary by SC DHEC. 

References

EPA (2007): Coal Combustion Waste Damage Case Assessments, Case #10, docket ID EPA-HQRCRA-2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #10. ICF, 10/2010.

 

560 According to Dewberry & Davis (2011), its current (2009) storage capacity was 675,000 cubic feet (418 acrefeet). The interior of the pond is now heavily vegetated.

561 According to Dewberry & Davis (ibid), its current (2009) storage capacity was 2,189,468 cubic feet (1,357 acrefeet). Discharge from the impoundment is regulated by an NPDES Permit No. SC0002020.

Fly ash is collected from the hoppers of the electrostatic precipitators (ESP) on Units 1 and 2 and from the 

hoppers of the baghouse on Unit 3. The fly ash from Units 1 and 2 is conveyed hydraulically through a series of 

pipes, along with the bottom ash and boiler slag from these units, to the Active ash Pond. The fly ash from Unit 3 

can also be conveyed hydraulically, along with the bottom ash and boiler slag, to the Active Ash Pond. However, the 

Unit 3 fly ash may also be pneumatically conveyed to a 1,200 ton ash storage silo. From the silo, the plant has the 

option of loading the fly ash into trucks to be transported for beneficial reuse. Both the Inactive Pond and the Active 

Ash Pond contain fly ash, bottom ash, pyrites and boiler slag. In addition, there are several additional ponds, which 

serve primarily for waste water treatment (i.e., coal pile runoff basins #1 and #2, coal pile runoff detention basin, 

low-volume waste ponds A, B, and C, and spray pond).

562 The contractor noted that drought-like conditions during the preceding three years have caused a site-wide 

decrease in the water table. The increase in potentiometric head between the new ash pond and the falling water 

table may be a contributing factor to the breaches in the slurry wall.

563 Arsenic and the Edisto, in an April18, 2011 email (SCE&G Canadys Plant Questions) from Billy Bruce to James 

Kohler, EPA, citing a 2008 article from the Charleston, South Carolina Post and Courier. According to The Post 

and Courier (2011), “arsenic has been found in groundwater near the plant's boundary along S.C. Highway 15 at 

levels higher than 600 ppb... Diagrams depicting the arsenic contamination show a torpedo-shaped plume about 600 

feet north of a boat landing on the Edisto. It shows the contamination has spread under S.C. Highway 15, beyond 

SCE&G's plant boundary.”

564 Dewberry & Davis (ibid).

565 Subject to an NPDES permit (SC0002020).

566 EPRI (2010).

567 Walterboro Minutes (2011); and Coal ash landfill exception fails: Board votes 2-2 on controversial SCE&G 

zoning bid: Charleston, SC Post and Courier, February 25, 2011.

568 SCE&G (2013).

569 EPA (2007).
I. CCR Proven Damage Cases December 2014

132

SCE&G (2009): SCE&G Response to EPA Request for Information, Coal Ash Impoundment Survey 

Results. Accessed Online July 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/sceg.pdf

Dewberry & Davis (2011): Coal Combustion Residue Impoundment Round 9 – Final Dam Assessment 

Report, Canadys Steam Power Station Ash Pond Embankments, South Carolina Electric & Gas, 

Canadys, South Carolina, December 2011. Accessed Online December 2013.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/sc_canadys_final.pdf

South Carolina Groundwater Contamination Inventory, Technical Report #002-08, October 2008.

National Pollutant Discharge Elimination System (NPDES) Permit for Discharge to Surface Waters 

Permit No. SC0002020.

Post and Courier Interview with DHEC, 2008. Accessed Online July 2012. 

http://media.charleston.net/2008/text/DHECinterview.doc;

EPRI (2010): Damage Case Report, V. 2: Case Summaries, EPRI, September 2010. Accessed Online 

July 2012.

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%2

0Product%20Damage%20Cases

Coal ash landfill exception fails: Board votes 2-2 on controversial SCE&G zoning bid: Post and Courier, 

Feb. 25, 2011. Accessed Online March 2012.

http://www.postandcourier.com/news/2011/feb/25/coal-ash-landfill-exception-fails/

The Ashepoo-Combahee-Edisto (ACE) Basin of South Carolina (A comprehensive regional study).

Accessed Online July 2012.

http://www.nerrs.noaa.gov/doc/siteprofile/acebasin/html/intro/execsum.htm

SCE&G (2013): SCE&G Retires Canadys Station Power Plant As Part Of Strategy To Meet More 

Stringent Environmental Regulations, Cayce, S.C. (Nov. 13, 2013). Accessed Online November 2013.

http://www.sceg.com/en/news-room/current-news/sceg-retires-canadys-station.htm

The Post and Courier (2011): Coal ash pervasive: 2 billion pounds of power plant waste gets in ponds, 

landfills. The Post and Courier (Charleston, S.C.), December 14, 2011. Accessed Online November 

2013.

http://www.arizonaenergy.org/News_11/News_Dec11/Coalashpervasive2billionpoundsofpowerplantwas

tegetsinpondslandfills.html

Walterboro Minutes (2011): Walterboro City Council Regular Meeting Minutes, 

January 25, 2011. Accessed Online November 2013.

http://www.walterborosc.org/Data/Sites/1/media/agendas%20and%20mintues/2011%20agnmin/minutes-january25min.2011.pdf

SCANA (2014): South Carolina Electric & Gas Company’s 2014 Integrated Resource Plan. Submitted to 

the Public Service Commission of South Carolina, February 28, 2014. Accessed Online August 2014.

STRICKEN - Exhibit C - State of Failure.pdf - EFIS
I. CCR Proven Damage Cases December 2014

133

PR24. DOE Savannah River Project, U.S. Department of Energy, Aiken, Allendale and 

Barnwell Counties, South Carolina

Type: Surface Impoundment.

Brief Description: The Savannah River Site (SRS) is a 310-square mile reservation on the Upper 

Coastal Plain of South Carolina established in 1950 for the production and processing of nuclear 

materials for national defense requirements. The Department of Energy manages SRS as a controlled 

area with limited public access.570 The SRS is on the NPL with hundreds of identified waste sites 

managed as 99 CERCLA operable units. The D-Area Electric and Steam Generating Facility is a 70 MW 

coal fired utility burning bituminous coal from Middlesboro, Tennessee. Particulate material from the 

water-slurried waste stream is removed by settling as it passes sequentially through two settling basins 

and a drainage swamp. A continuous flow of sluice water exits the basins, overflows, and enters a 

swamp that in turn discharges to Beaver Dam Creek (a tributary of the Savannah River). 

All bottom and fly ash is deposited in the basins and no other wastes are co-managed at the site. Water 

retention time in the entire basin system is around 60 days and water discharge from the site is about 5 

million gallons/day. Sediments, water, and biota in the disposal system have elevated concentrations of 

trace elements and heavy metals derived from the ash.

571 Bullfrog tadpoles inhabiting the site have oral 

deformities and impaired swimming and predator avoidance abilities, and there also is evidence of 

metabolic impacts on water snakes inhabiting the site. 

Research on amphibians in D-area indicates that exposure to the wastes results in accumulation of trace 

elements and a variety of adverse effects.572 A variety of lethal and sub-lethal effects were documented 

in the biota of this ecosystem. Populations of benthic invertebrates were reduced. Impacts to 20 fish 

included elimination of at least five species, fin erosion, reduced swimming performance, and reduced 

growth. Snakes exhibited liver pathology and elevated metabolic rate. Frogs exhibited axial and oral 

deformities,573 increased metabolic rate,574 reduced swimming performance and reduced predator 

avoidance. Adult toads had abnormal levels of sex hormones and larval toads experienced 100 percent 

mortality. Salamanders experienced an extended larval period and showed reduced recruitment. Cotton 

rats had a high incidence of malformed DNA strands. The interaction of multiple sub-lethal effects was

sufficient to reduce recruitment and cause population-level impacts in frogs.575 Indirect effects include 

the reduction of periphyton,576 zooplankton, and benthic invertebrate abundance in D-area. Such 

reductions are associated with alterations in growth and metamorphic traits in vertebrates and may, in 

part, explain observed reductions in amphibian recruitment from the D-area site. Finally, maternal 

effects involve the inclusion of higher mercury and selenium contents into eggs, leading the disruption of 

embryonic development resulting in increased frequency of developmental abnormalities and reduced 

embryonic Survival rates.577

Previous Basis for Consideration: Scientific: Evidence of impacts on several amphibian species in a 

nearby wetland caused by releases from the ash settling ponds.

Resolution: Beginning in 2001, a vegetative cover treatment study was done to develop ways of 

reducing acid drainage from the ash basin. Since that time, the ash basin has been operated as a landfill, 

with permanent capping and vegetation of filled areas. Final remediation of the site is expected to begin 

in 2015, concurrent with closure of the coal-fired power plant. EPA’s Toxics Release Inventory reported 

that substantial discharges of contaminants, including mercury and lead (selenium not reported) 

continued in 2005, which was the latest reporting year available.578
I. CCR Proven Damage Cases December 2014

134

 

570 According to Hopkins and Rowe (2004), the entire site, however, is designated as a National Environmental 

Research Park (NERP). 

571 Data presented in Cherry et al., (2000) and cited below, were mean values for six water column sampling stations 

in and below the coal ash basin. The two metals found in the highest concentrations were iron and aluminum, both at 

concentrations well above their acute and chronic Water Quality Criteria (WQC) limits (16.9 and 13.0 ppm, 

respectively). The average concentrations of cadmium, chromium, copper, mercury, selenium, and zinc in the 

drainage system water column also were greater than their respective acute WQC limits. For example, copper 

averaging 0.401 mg/L or 401 m g/L exceeded the acute (18 m g/L) and chronic (12 m g/L) WQC by 22 and 33 

times. Zinc (371 m g/L) exceeded chronic WQC (47 m g/L) by eight times while cadmium (123 m g/L) did so by 

112 times. These levels for zinc and cadmium exceeded the acute WQC by 1.1 and 31 times, respectively. 

Bioconcentration factors (BCFs) values as high as 3,597 for aluminum, 1,253 for arsenic, and 156 for mercury were 

found in duckweed, suggesting that duckweed was a sink for metal deposition. The BCF is an environmentally 

relevant consequence because duckweed serves as a food source for aquatic and/or terrestrial organisms, and metals 

will accumulate at even greater concentrations in those organisms of higher trophic levels.

572 Hopkins et al., (1997); Hopkins and Rowe (2004).

573 Amphibians with oral abnormalities exhibit negative growth rates as a result of decreased grazing efficiency. 

Spinal abnormalities alter the normal propulsive movements of the tail, which is believed to affect their ability to 

escape predation.

574 The increase in metabolic rate is a sub-lethal effect that often accompanies contaminant exposure. Such increases 

in energy expenditure are predicted to result in reductions in energy allocation to processes important to fitness 

including growth, reproduction, and/or storage.

575 Lemly (2010).

576 Periphyton are benthic (attached) algae that grow attached to surfaces such as rocks or larger plants. Periphyton 

are primary producers and sensitive indicators of environmental change in lotic (flowing) waters. 

(http://www.epa.gov/bioindicators/html/periphyton.html).

577 Lemly (2010) estimated the monetized value of the damage at close to $18 million.

578 Lemly (2010) and references therein.
I. CCR Proven Damage Cases December 2014

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ICF (2010) Rationale: Proven Damage. <Technical studies implicate CCRs in ecological impacts to 

biota through surface water.>

References

Hopkins et al., (1997): Increased Circulating Levels of Testosterone and Corticosterone in Southern 

Toads, Bufo terrestris, Exposed to Coal Combustion Waste William A. Hopkins, Mary T. Mendonca, 

and Justin D. Congdon, General and Comparative Endocrinology 108, 237–246 (1997). Accessed Online 

November 2014.

http://ecophys.fishwild.vt.edu/wp-content/uploads/2012/11/hopkins-et-al.-1997-GCE.pdf

EPA (2007): Coal Combustion Waste Damage Case Assessments, Case #12, docket ID EPA-HQRCRA-2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #12. ICF, 10/2010.

Hopkins et al., (2004): Impacts of Aquatic Disposal of Coal Combustion By-Products on Vertebrates on 

the Savannah River Site, Hopkins, William A. and Christopher L. Rowe, pp. 141-147 in the Proceedings 

of State Regulation of Coal Combustion By-Product Placement at Mine Sites: A Technical Interactive 

Forum, Wyndham Hotel Harrisburg, Pennsylvania, May 4-6, 2004. Accessed Online June 2012.

http://www.mcrcc.osmre.gov/MCR/Resources/ccb/PDF/State_Regulation_of_CCB_Placement.pdf 

Hopkins (undated): Sublethal Impacts of Coal-Derived Trace Elements on Amphibians, Reptiles, and 

Invertebrates. B. Hopkins, B. Staub, C. L. Rowe and J. Congdon, Savannah River Ecology laboratory, 

Herpetology Program, Unknown date. Accessed Online June 2012. 

http://srelherp.uga.edu/projects/coal.htm

Ecological Assessment of Selenium in the Aquatic Environment, Appendix A. Selected Case Studies of 

Ecosystem Contamination by Selenium, Edited by Terry F. Young et al., CRC Press, 2010, Pages 265–

269. Accessed Online June 2012.

http://wwwrcamnl.wr.usgs.gov/Selenium/Library_articles/chapman_etal_2010_appendixA.pdf

The second five-year review, USDOE Savannah River Site, WSRC-RP-2001-4163, September 2003. 

Accessed Online June 2012

http://www.epa.gov/superfund/sites/fiveyear/f04-04015.pdf

2008 Savannah River Environmental Report. Accessed Online June 2012.

http://www.srs.gov/general/pubs/ERsum/er09/er2008.htm

Cherry et al., (2000): Review of the Global Adverse Environmental Impacts to Ground Water and 

Aquatic Ecosystems from Coal Combustion Wastes; Cherry, Donald S., Rebecca J. Currie and David J. 

Soucek. Hoosier Environmental Council and Citizens Coal Council Indianapolis, IN, March 28, 2000. 

Accessed Online June 2012. 

http://www.citizenscoalcouncil.org/wp-content/uploads/2012/07/A-REVIEW-OF-THE-ADVERSEENVIRONMENTAL-IMPACTS-OF-COAL-COMBUS.htm

EPRI (2010): Damage Case Report, V. 2: Case Summaries, EPRI, September 2010. Accessed Online 

June 2012.
I. CCR Proven Damage Cases December 2014

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http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%2

0Product%20Damage%20Cases

Lemly (2010): A White Paper on Environmental Damage from Coal Combustion Waste: The Cost of 

Poisoned Fish and Wildlife, A. Dennis Lemly, December 15, 2010. Accessed Online June 2012.

http://prairierivers.org/wp-content/uploads/2012/03/Lemly-2010-Environmental-Damage-fromCCW.pdf 

PR25. Urquhart Station, SCANA, dba South Carolina Electric & Gas Company 

(SCE&G), Beech Island, Aiken County, South Carolina

Type: Landfill and Associated Coal Ash Settling Basins.

Background and Description: Coal ash produced at the Urquhart Station579 is disposed of in an active 

(Class II) landfill580 and two settling basins along the Savannah River in Beech Island, South Carolina.581

Disposal at this landfill dates back to the late 1980s. The landfill is 300 feet from the river, and the two 

settling basins are 100 feet from the river.

582 Localized groundwater flow is assumed to be towards the 

 

579 Station’s address: 100 Urquhart Dr., Beech Island, SC 29842, east of Augusta, Georgia, and on Savannah River’s 

eastern shore. According to SCE&G’s website (http://www.sceg.com/en/about-sceg/power-plants/fossilfired/urquhart-station/, accessed Sept. 2012), established in 1953, the Urquhart Station generates 650 megawatts of 

electricity by burning pulverized coal and natural gas in its five units. Prior to the conversion of Unit 3 to gas, it 

burned approximately 40 tons of coal and 4 billion cubic feet of natural gas per hour when operating at full capacity. 

According to updated website information (accessed Dec. 2013): http://www.sceg.com/en/mycommunity/environment/air/Urquhart-Station.htm and South Carolina Radio Network (2012), the plant converted 

two of its coal-fired units into combined-cycle operation, fueled by clean-burning natural gas, in 2002. These two 

units produce 330 MW of electric generation and use exhaust heat to power two 64 MW turbines (SCANA, 2012). 

Unit 3 (95 MW), the last coal-fired boiler at the Station, was converted to burn natural gas in 2012. The remaining 

two units would be retired once SCE&G two new nuclear reactors at the V.C. Summer Site in Jenkinsville are 

finished by 2018.

580 Three Rivers Solid Waste Authority (2009).

581 According to Dewberry & Davis (2011), fly ash collected at the base of the stack by an electrostatic precipitator 

is stored in hoppers and conveyed pneumatically to a silo. From the silo it is mostly sold for beneficial use. What is 

not sold is hauled via truck to a permitted dumping site. The plant does not discharge into the ash pond. Bottom ash 

collected from the furnace is conveyed hydraulically through a pipe to a dewatering bin. From the dewatering bin it 

is trucked to a permitted landfill. The transport water overflows from the dewatering bin to the ash pond. Boiler slag 

is collected from the boiler and is sluiced into the same pipe that conveys bottom ash into the dewatering bin.

The ash pond (constructed in 1977) was designed and operated for reservoir sedimentation and sediment 

storage of ash. CCR and stormwater runoff are discharged into the reservoir. Inflow water is treated through gravity 

settling and deposition and the treated process water and stormwater runoff are discharged through an unregulated 

type overflow outlet structure. The ponds are not used for permanent storage and are periodically (once every 12 to 

18 months) dredged to remove ash material (fly ash, bottom ash, pyrites, and boiler slag).

The ash pond is partly impounded by an earthen embankment system consisting of a dike configuration and 

partly incised into natural grade. There is actually one ash pond for the plant separated into two pools (upper and 

lower) by an internal dike. According to SCE&G (2009), Ash Pond 1 has a surface area of approximately 1.4 acres 

and a total maximum calculated storage capacity of approximately 18,000 cubic yards. When dredged, the volume 

of materials removed from Ash Pond 1 is estimated to be about 5,000-6,000 cubic yards. Ash Pond 2 has a surface 

area of approximately 0.8 acres and a total maximum estimated storage capacity of approximately 11,500 cubic 

yards. When dredged, the volume of materials removed from Ash Pond 2 is estimated to be about 1,000 cubic yards.

582 For an aerial photo of the waste units, see Dewberry & Davis (ibid), Fig. 2.1b.
I. CCR Proven Damage Cases December 2014

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river. Groundwater has been evaluated onsite and wetland contamination has been inferred; however, 

due to the sporadic nature of contaminants at the site, no formal assessment or offsite investigation has 

occurred until 2010. The South Carolina Department of Health and Environmental Control (SC DHEC) 

indicated that no offsite monitoring has been required since results in wells near the river have not 

exceeded drinking water standards. 

Impact and Damage Claims: EIP (2010) indicates that levels of arsenic exceeded the primary EPA 

Maximum Contaminant Level (MCL) in onsite groundwater associated with the landfill and the ash 

settling basins. Additionally, arsenic and nickel have exceeded South Carolina drinking water standards 

in onsite groundwater associated with the landfill. The site is listed on the SC DHEC Groundwater 

Contamination Inventory (2008) for arsenic contamination exclusively associated with the ash basins.583

Sampling at the Urquhart Station in 2010-2011 revealed arsenic above the MCL in four of nine ash pond 

wells (up to 1,209 ppb, 121 times the MCL), and in five of six wells at the coal ash landfill (up to 287 

ppb).584 A June 2010 Environmental Site Assessment report, prepared for SCE&GC,585 based on 

monitoring well sampling in March 2010, revealed an arsenic plume that reaches maximum values of 

>200 μg/L immediately north of the landfill and adjacent to the primary Low Volume Waste Pond (near 

Well GW-14). Another plume, with maximum arsenic concentrations of >100 μg/L, occurs just off coal 

ash impoundments No. 1 and No. 2 (near wells GW-16 and GW-18). This plume affects only the 

shallow, unconfined aquifer. The 10 μg/L arsenic iso-concentrating contour traverses the Power Plant’s 

property boundary at Coster’s Branch by about 150 feet.

A confirmatory groundwater and surface water sampling and laboratory analysis conducted in May 

2010586 detected arsenic in 10 groundwater samples at concentrations ranging from 8.8μg/L (in Well 

GW-13), to 485 μg/L (in Well GW-25). The concentrations of arsenic exceed the MCL of 10 μg/L level 

at all of the locations at which it was detected except in Well GW-13. These data confirm the 

configuration of the iso-concentration contours of the two dissolved arsenic plumes in the shallow 

aquifer identified by the March 2010 sampling; the data also confirm that the arsenic plumes have not 

migrated to the deeper, confined aquifer. Based on the results of the May 2010 confirmatory 

groundwater and surface water sampling, the report recommended that additional assessment be 

conducted at the site to further delineate the horizontal and vertical extent of the dissolved arsenic 

plumes and/or that a Corrective Action Plan be developed for the site.

EIP (2010) also claims that contaminated shallow groundwater discharge into the adjacent wetland, and 

that drilling activities for a replacement well near the wetland revealed that coal ash waste was placed 

into the wetland.

587

 

According to SCE&G (2009), on site there are also several additional ponds whose primary purpose is 

wastewater treatment (i.e., metals pond, low-volume waste pond, ash-landfill runoff basin, low-volume waste 

polishing pond, and stormwater runoff pond).

583 SC DHEC (2008), Page 21.

584 Risky Business (2011), Page B.1.

585 Boutin (2010).

586 Confirmatory Study (2010).

587 In its comment to the October 2011 NODA’s docket: EPA-HQ-RCRA-2011-0392-0274, SCANA Corporation 

claims that no monitoring wells at the site are located within a wetland, and therefore, no data exist to support a 

claim that coal ash was disposed in a wetland. Moreover, the groundwater level at MW-3B, located adjacent to a 

wetland and not within a wetland, is typically 10-12 feet below natural ground surface, and therefore the subject 

wetland feature does not act as a discharge feature for groundwater to the wetland.
I. CCR Proven Damage Cases December 2014

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SCE&G claims that elevated levels of arsenic are due to the monitoring wells being placed in ash 

disposal areas and wells that were improperly constructed, and requested that the replacement well in the 

wetland area be abandoned. SC DHEC denied the request.

USWAG concluded588 that this case does not meet the criteria for a damage case because the allegations 

do not contain any documented evidence of off‐site groundwater monitoring data or off‐site groundwater 

monitoring data showing exceedances of specified health‐based criteria. In the context of the 2010-2011 

groundwater study findings, however, this conclusion does not hold water. 

Evaluation against Proven Damage Criteria589

ICF’s (2010) Rationale: Inadequate Information. Sporadic groundwater exceedances of the primary 

EPA MCL for arsenic have been found on site. The EIP/EJ February 2010 Report claims that coal ash 

wastes have been disposed of in the wetland area, however there is no scientific study that provides 

documented evidence of damage to human health or the environment. Previous and ongoing assessment 

activities are “informal” and there are currently no regulatory corrective actions, administrative rulings, 

or court decisions associated with the site.

Resolution: SCE&G met twice with SC DHEC in 2009 to develop a scope of work to conduct a 

hydrogeological assessment of the areas encompassing the coal ash sluice and low-volume waste ponds 

at Urquhart Station. This work was completed in March 2010 and included installation of 12 new 

groundwater monitoring wells, aquifer characterization, as well as surface water and groundwater 

sampling and laboratory analysis. The results of this assessment were reported to SC DHEC in June 

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels 

(MCLs) or other health-based standards 

measured in groundwater at sufficient 

distance from the waste management unit 

to indicate that hazardous constituents 

have migrated to the extent that they 

could cause human health concerns

 Onsite groundwater data exceeded the primary EPA MCL 

for arsenic.

 Onsite groundwater data exceeded South Carolina drinking 

water standards for arsenic and nickel.

 No offsite groundwater data are available. 

Criterion 2: Where a scientific study 

provides documented evidence of another 

type of damage to human health or the 

environment (e.g., ecological damage)

 Ash was discovered in a replacement well near the wetlands, 

suggesting that coal ash waste were placed into the wetland.

Criterion 3: Where there has been an 

administrative ruling or court decision 

with an explicit finding of specific damage 

to human health or the environment

 SCG&E completed a Comprehensive Groundwater 

Assessment for the landfill area, and they are currently 

assessing the nature and extent of the contamination 

associated with the ash settling basins. According to DHEC 

personnel these activities are considered to be “informal” 

actions, and no violations or orders have been issued to the 

owner.

 

588 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0211. USWAG further states that “the alleged 

damage case documents that groundwater monitoring wells nearest the river have not exceeded any drinking water 

standards and therefore no off‐site exceedances have been demonstrated. Allegations in the reference also indicate 

ecological impacts to a wetland adjacent to the landfill but there is no evidence provided of any testing or scientific 

studies to support any allegation of ecological damage.”

589 ICF (2010a).
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2010.590

Confirmatory groundwater and surface water sampling was conducted in May 2010 and reported to SC 

DHEC in July 2010. A work plan to conduct supplemental assessment of the interaction between surface 

water and groundwater near the northern property line at the site was submitted to SC DHEC in October 

2011. The supplemental assessment was conducted and the results reported to SC DHEC in February 

2011.591

While conceding that one monitoring well detected arsenic in the groundwater above MCL, DHEC 

claims that the results have fluctuated and arsenic has exceeded the MCL in one sampling event since 

2008. DHEC entered into a Consent Agreement with SCE&G for the closure of the landfill and in June 

2011 the Department approved the closure plan.592 Decommissioning of the plant’s former coal-handling 

facilities is in progress.593

Postscript: ICF’s (2010a) findings of ‘inadequate site impact information’ has been superseded by the 

findings of the July 2010 Confirmatory Groundwater and Surface Water Sampling Environmental Site 

Assessment and the 2010-2011 monitoring well evidence for arsenic exceedances.

References

EIP (2010): Out of Control: Mounting Damages from Coal Ash Waste Sites, Thirty-one New Damage

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #26. The 

Environmental Integrity Project and EarthJustice. February 24, 2010. Accessed Online September 2013.

http://www.environmentalintegrity.org/news_reports/news_02_24_10.php

ICF (2010a): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix B, Case #26. ICF, 10/2010.

SC DHEC (2008): South Carolina Department of Health and Environmental Control (SC DHEC), 

Groundwater Contamination Inventory, 2008. Accessed Online June 2012. 

http://www.scdhec.gov/environment/water/gwci/gwci.pdf

SCE&G (2009): SCE&G Response to EPA Request for Information, Coal Ash Impoundment Survey 

Results, August 2009; accessed Online December 2013.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/sceg-urg_080409.pdf

Dewberry & Davis (2011): Coal Combustion Residue Impoundment Round 9 – Final Dam Assessment 

Report, Urquhart Generating Station Ash Ponds, South Carolina Electric & Gas, Beech Island, South 

Carolina, November 2011. Accessed Online December 2013.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/sc_urquhart_final.pdf

Risky Business (2011): Coal Ash Threatens America’s Groundwater Resources at 19 More Sites.

Environmental Integrity Project Report, December 13, 2011. Accessed Online June 2012. 

http://www.environmentalintegrity.org/documents/121311EIPThirdDamageReport.pdf.

 

590 SCANA Corporation’s comment to the October 2011 NODA’s docket: EPA-HQ-RCRA-2011-0392-0274.

591 EPA-HQ-RCRA-2011-0392-0274.

592 DHEC’s comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392, November 14, 2011: 

http://www.astswmo.org/Files/Policies_and_Publications/Cross-program/Coal_Combustion_Residuals/2011.11-

NODA_Comments/South_Carolina_NODA_Comments.pdf

593 SCANA (2012), page 21.
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Boutin (2010): Environmental Site Assessment, SCE&G Urquhart Station Coal-Ash Sluice Water and 

Low Volume Waste Ponds Site #00377, NPDES Permit #0000574, Beech Island, Aiken County, South 

Carolina; Brian S. Boutin, PG (ICR response to Question 11, provided to EPA/OECA: Urquhart 

Assessment Report 0610_FINAL1.pdf), June 2010.

Confirmatory Study (2010): Confirmatory Groundwater and Surface Water Sampling Environmental 

Site Assessment, SCE&G Urquhart Station, Coal-Ash Sluice Water and Low Volume Waste Ponds Site 

#00377, NPDES Permit #0000574, Beech Island, Aiken County, South Carolina, July 2010.

South Carolina Radio Network (2012): SCE&G to phase out six coal-fired units, May 30, 2012. 

Accessed Online December 2013.

http://www.southcarolinaradionetwork.com/2012/05/30/sceg-to-phase-out-six-coal-fired-units/

SCANA (2012): United States Securities and Exchange Commission Form 10-K, February 29, 2012.

Accessed Online December 2013.

http://www.scana.com/NR/rdonlyres/9C2111E3-B230-4C4B-8178-085C3F8B2F23/0/201110K.pdf

Three Rivers Solid Waste Authority (2009): Regional Solid Waste Management Plan, prepared by Three 

Rivers Solid Waste Authority for Counties of Aiken – Allendale – Bamberg – Barnwell – Calhoun –

Edgefield – McCormick – Orangeburg – Saluda, November 4, 2009. Accessed Online December 2013.

http://www.trswa.org/Three-Rivers-Regional-Solid-Waste-Management-Plan-2009.pdf

SCANA (2014): South Carolina Electric & Gas Company’s 2014 Integrated Resource Plan. Submitted to 

the Public Service Commission of South Carolina, February 28, 2014. Accessed Online August 2014.

STRICKEN - Exhibit C - State of Failure.pdf - EFIS

PR26. TVA Kingston Fossil Fuel Plant,

594 Harriman, Roane County, Tennessee

Type: Surface Impoundment Dike Failure.

Brief Description: The Tennessee Valley Authority (TVA) Kingston Fossil Fuel plant (KIF) is located 

in Roane County, Tennessee, on a peninsula formed by the confluence of the Emory River (to the north) 

and the Clinch River (to the south and east), about 35 miles west of downtown Knoxville.

595 The plant 

uses the Emory River as a source of cooling water and discharges effluents into the Clinch River. Water 

 

594 The TVA Kingston Fossil Fuel Plant (KIF) is located at Emory River Mile 2.6 and is at the headwaters of WattsBar Reservoir near the confluence of the Clinch and Emory Rivers (Clinch River Mile 2.7). KIF adjoins Swan Pond 

Road just north of U.S. Highway (US) 70 in Midtown. Begun in 1951 as the Kingston Steam Plant, KIF was built to 

supply nearby Oak Ridge atomic energy installations with a steady supply of electricity. When it was commissioned 

in 1955, it was reportedly the largest coal-fired power plant in the world. KIF has nine generating units: units 1–4,

rated at 175 MW each (launched into service in 1954), and units 5–9, rated at 200 MW each (launched in 1955). KIF 

burns daily about 14,000 tons of coal with an average of 12.5 percent ash. For plants to optimize operation of a 

Selective Catalytic Reduction (SCR) system and predicted environmental implications, see TVA (2008). 

595 Most nearby Federal lands are U.S. Department of Energy (DOE) reservation properties for the Oak Ridge 

facilities, but residential and recreational areas are in close proximity. The closest residences are directly across 

Swan Pond Road from the plant reservation. Residences are also located across Swan Pond embayment and the 

Clinch and Emory Rivers.
I. CCR Proven Damage Cases December 2014

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for the KIF is drawn from the reservoir created by the Watts Bar Dam which is located about 38 miles 

downstream from the mouth of the Clinch River.596

Kingston’s CCR disposal system was first constructed in the 1950s and has undergone significant 

changes through the years. Prior to the December 2008 spill incident, all KIF’s disposal units were 

located to the northeast of the Plant and on the south bank of the Emory River section of the Watts-Bar 

Lake. They included the Main Ash Pond, the Stilling Pond, the Fly Ash Stacking Area (Dredge Cells 1 

and 2 and an Emergency Dredge Cell), and the Stack Runoff-Leachate Pond (on portion of the site of the 

Initial Ash Cell). Following the December 2008 spill incident, all the pond areas (with the exception of 

the stilling pond) have been converted to ash stacking areas. In addition, on the peninsula on the northern 

bank of the Clinch River section of the Watts-Bar Lake, the Gypsum Disposal Area and the Gypsum 

Dewatering Facility were constructed.597

The initial 1954, 85-acre Ash Pond and more expansive 275-acre final storage area, enclosed by the 

perimeter “East Dike” and “Dike C”, were located immediately north of the KIF along the bank of the 

former Emory River at the confluence with Swan Pond Creek and its flood plain. The 275-acre storage 

area598 consisted of the main pond where ash was deposited and a stilling pond.599 Once the initial ash 

ponds were full in the early 1980s, the TVA began to dredge ash from a collection pond and to construct

elevated dredge cells with containment dikes where ash from the main pond is finally placed. Between 

1954 and 1990, the loose wet ash placed in the dredge cells accumulated to a depth of 40 to 65 feet.600

The Ash Processing Area was built in 2009 as a place to dewater and temporarily store ash dredged from 

the Emory and Clinch Rivers during cleanup and recovery from the spill. This area was built over an 

abandoned section of the ash disposal area, including 7.4 – 16.2 meters of ash fill, and an abandoned 

metal cleaning pond.601

To reduce system-wide sulfur-dioxide emissions from all nine generation units and to meet requirements 

under the 1990 Clean Air Act, as well as to maintain compliance with the USEPA Title IV regulations 

for the Acid Rain Program, in 2010 TVA installed two scrubbers using limestone forced oxidation 

(LSFO) technology. TVA began testing of the new scrubbers in June 2010, and the new clay-lined units 

became fully operative in June 2010.602 Following the December 2008 fly ash dike failure at KIF, on 

August 20, 2009 TVA decided to convert the future handling of CCRs from wet to dry storage.603 To 

achieve a wet to dry conversion for gypsum, TVA constructed a gypsum dewatering facility that was 

scheduled to come online in December 2011.604

The KIF is underlain by a mantle of predominantly residual soil that resides over Lower Paleozoic 

bedrock sequence. Soil (primarily clay and silt with variable chert gravel content) thicknesses range from 

8.5 to 120 feet and average 40.5 feet within the confines of the proposed FGD disposal area.605. As is 

Typical to the Valley and Ridge Province hosting the KIF, the bedrock has been disrupted by several 

low-angle reverse (thrust) faults: the Chattanooga Fault, the Watts-Bar Lake Fault, and beyond the KIF’s 

property to the northwest – the Harriman Fault. Underneath the ash pond area, the bedrock is overlain by 

a clay, silt and sand alluvium that is 20 to 40 feet thick. The underlying Cambrian-age Conasauga Shale 

formation consists of folded and fractured shales with minor layers of limestone and dolomite. It is 

underlain by the Cambrian-age Rome Formation Shale. These two Cambrian formations are thrust – by 

the Chattanooga Fault – over the Cambrian-Ordovician age Knox Group carbonates.606

The Knox Group is a slight to highly fractured, massive to layered chert-rich dolomite. Most cavities and 

joints are completely or partially filled with clays or sands, but open cavities were observed at half of the 

core-hole locations. There are topographic expressions of dolines (enclosed karstic depressions) at the 

site: the dolines are thickly mantled by residual soil with thicknesses ranging from about 35 to 75 feet. 
I. CCR Proven Damage Cases December 2014

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Groundwater movement at the site generally follows topography with groundwater flowing southeasterly 

from the site ridgeline toward the Clinch River without traversing private property.607 Based on a survey 

of water use in June 2005, there were no surface water or groundwater supplies located within a 1-mile 

radius of the site. Furthermore, considering that the site is hydraulically bounded on virtually all sides,

and since all downgradient property between the disposal site and surface water boundaries lies within 

the plant property, there is no potential for future development of residential wells, nor for off-site 

impacts to residential or municipal groundwater supplies. 

Wastewater discharge is regulated under tow permits: Permit No. TN0005452, regulating fly ash and 

bottom ash sluice water discharges to Clinch River at mile 2.9;608 and Permit No. TN00080870, 

regulating discharge from the Flue Gas Desulfurization System storm water pond into Clinch River at 

mile 2.5.609 The Pre-December 2008 surface water Quality was compromised by the area’s historic 

 

596 The Watts-Bar, operational since 1942, is one of nine TVA dams on the Tennessee River. Stretching 

approximately 72 miles along the Tennessee River, the dam creates a slack-water reservoir with channels that 

extends more than 20 miles up the Clinch River and 12 miles up the tributary Emory River. The December 2008 

failed dredge cells are located two miles up the Emory River from its historic confluence with the Clinch River.

597 Based on TVA (2002), Figures 1-1 and 3-2; TVA (2006), Figure 2-1; and TVA (2010a), Figure 1-2.

598 It is sited on alluvial flood plain deposits of clay, silt, and sand.

599 According to TVA (2006), as of 2005, KIF produced between 320,000 to 440,000 tons of fly ash and 80,000 to 

110,000 tons of bottom ash annually (about an 80/20 percent ratio).

600 AECOM (2009).

601 For design and layout information of the rebuilt waste units during TVA Kingston’s dam integrity inspection, 

October 21, 2011 (the active Ash Pond C and the FGD Landfill, then under construction), see Dewberry Associates 

(2013), Sections 2.1, 3.2, 4.1, and 4.2, Figures C-1 and C-2, and Appendix B, Document 23.

602 TVA (2006). The amount of gypsum produced by LSFO scrubbing is dependent on the sulfur content and heating 

value of the coal, absorber efficiency, and the amount of coal fired. The maximum theoretical gypsum production at 

KIF (based on 75 percent capacity factor for operation of the plant and the use of 5.0 lb sulfur per mmBtu coal) is 

expected to be 560,000 tons per year.

The gypsum disposal facility at KIF is located on the west bank of the Clinch River/Watts-Bar Reservoir 

near Clinch River Mile 3.5. Disposal site selection factored in the need of the gypsum dewatering facility to be close 

to the gypsum pond and stack area and the barge loading area. The preferred site is the mid-section of the KIF 

Peninsula (“KIF Peninsula Area #2”). During the 2008-2010 gypsum facility construction period, ten sinkholes were 

discovered and repaired. In December 2010, TVA discovered that liquid was draining through a sinkhole near the 

southern edge of the disposal area, causing dramatically elevated selenium concentrations in underlying 

groundwater, and ultimately discharging to the Clinch River. TVA dewatered the area in January 2011. During 

investigation and repair work, TVA discovered additional sinkholes. The clay liner was ultimately removed and 

replaced, and covered with a high-density polyethylene (HDPE) liner. See also TDEC General Counsel (2010) and 

Dewberry Consultants (2013), Appendix B, Document 24.

603 TVA (no date, presumably 2009), and TVA (2010b).

604 TVA (2010a). TVA (2010a) supplemented the original environmental assessment for the installation of the 

scrubbers at KIF: Installation of Flue Gas Desulfurization System on Kingston Fossil Plant Environmental 

Assessment (TVA, 2006)

605 TVA (2006).

606 AECOM Slide Presentation (http://www.tva.gov/kingston/rca/), Part Three, slides 18 and 20.

607 According to TVA (2002), Figure 3-1 (Groundwater Potentiometric Surface Based on December 1994 Water

Level Measurements), there was some 10-15 feet groundwater mounding underneath the Ash Pond, with 

groundwater flow assuming an arcuate radial pattern to the south, east (Emory River) and northeast (Swan Pond 

Creek Embayment). However, following the conversion to dry stacking following the 2008 spill incident, this 

mounding might be no longer in existence. 

608 Issued September 1, 2003, the permit expired August 31, 2008. TVA reported that it had submitted an application 

for renewal prior to February 28, 2008. TDEC issued a draft renewal permit on October 11, 2010.

609 Issued September 22, 2009, the permit expired September 30, 2013. (Dewberry, ibid, Appendix A, Document 9).
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legacy. The Emory River arm of Watts-Bar Reservoir and the Clinch River arm of Watts-Bar Reservoir 

are on the state 303(d) list of impaired waters because of sediments contaminated with polychlorinated 

biphenyls (PCBs) and chlordane from upstream industrial point sources. The section of the Emory above 

the influence of the Watts Bar impoundment is listed due to mercury from atmospheric deposition. 

Several tributaries of the Emory River upstream of KIF are listed for manganese, iron, and pH from 

historic coal mining activities. One nearby tributary of the Emory Arm is also listed for arsenic. Some of 

this contamination occurs as a result of former U.S. Department of Energy (DOE) operations on the Oak 

Ridge Reservation. The primary concern is PCB contamination in fish. Other contaminants include 

radioactive materials and metals.610

Impact: Surface Water/Soils and Sediments, Ecology: On December 22, 2008, the northeastern dike of 

the unlined611 surface impoundment (Main Ash Pond) at KIF failed. About 5.4 million cubic yards of fly 

ash sludge along with about 327 million gallons of water were released within about one hour over a 

300-acre area and into a branch of the Emory River. The spill ruptured a natural gas line, disrupted 

power and transportation, rendered three homes uninhabitable and damaged many others, which resulted 

in the evacuation of a nearby residential area.612 About 90 percent of the release went into the Emory 

River, inundating the channel with up to 10 meter-thick ash column for a distance of over 6 km. Ash 

made its way also into the Clinch River, which joins with the Emory downstream, and was also found 16 

km downstream in the Tennessee River, which joins with the Clinch.613 Together, the three rivers form 

the upper end of Watts Bar Reservoir.614

A Root Cause Analysis615 identified four factors likely to have contributed to the dikes’ failure scenario: 

1) the presence of ‘slime’, an unusually weak foundation of ash and silt, formed by a not-regulated 

discharge of ash slurry towards a tributary of the Emory River prior to the impoundment’s construction, 

2) the impoundment’s ‘upstream’ expansion phase that involved construction of sloping dikes over the 

wet ash, 3) the increased load on the retaining walls due to higher fill, and 4) the high water content of 

the wet ash. The TVA Office of Inspector General concluded that TVA Kingston’s management failed to 

address concerns about the stability of the Kingston ash storage facilities.616

 

610 TVA (2010a).

611 EPRI Comment EPA-HQ-RCRA-2009-0640-9765, page 49.

612 For a photo presentation on the release and its immediate aftermath, see Pond Failure Slides (2009). This ash spill 

is the largest volume industrial spill in U.S. history. The incident triggered USEPA’s decision to issue federal 

regulations for the management of CCRs, and to conduct a nationwide, comprehensive information collection and 

dam integrity survey campaigns of the utility industry’s CCR surface impoundments.

613 According to Deonarine et al., (2012), the ash was released into the river between Emory River Mile 2.5 and 

Emory River Mile 3. The resulting ash wave distributed the ash as far upstream as Emory River Mile 6. High-flow 

events that followed in the months after the spill distributed ash further downstream in the Clinch River from Clinch 

River Mile 5 to Clinch River Mile 0, and into the Tennessee River.

614 According to http://www.cnn.com/2008/US/12/23/tennessee.sludge.spill/?iref=mpstoryview, it was the largest 

coal-related slurry spill in United States history, more than three times the size of the Martin County coal sludge 

spill of 2000, which spilled 306 million US gallons (1,160,000 m3) of liquid coal waste.

615 Edison Mission Energy’s (EME) comment to the docket: EPA-HQ-RCRA-2009-0640-8244, and AECOM 

(2009). 

616 Tennessee Department of Environment and Conservation (TDEC) comment to the proposed rule’s docket: EPAHQ-RCRA-2009-0640-6298. TDEC states that while TVA was aware of the potential structural failure of the 

landfill via information from its employees and consultants, it has not pursued a preventative action, nor has TVA 

communicated this information to the regulatory agency. TDEC cites the TVA Office of Inspector General’s July 

23, 2009 report (page 4): "TVA was aware of 'red flags' that were raised over a long period of time signaling the 

need for safety modifications to the TVA ash ponds. These 'red flags' were raised by both TVA employees and 

consultants hired by TVA. Specifically, a 1985 internal memorandum written by a TVA engineer and two 2004 

reports by external engineering consultants raised concerns about the stability of the Kingston ash storage facilities."
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The spill’s immediate impact killed approximately 5,000 fish, and unknown numbers were stranded or 

buried under the ash. Birds, mammals, amphibians, and reptiles were exposed to toxic ash in the spill 

area and sluice pond, and some were killed. Mussels and other benthic macro-invertebrates were

smothered. At least 33 hectares of aquatic ecosystems in an embayment area were completely destroyed 

during the initial release.617

The Tennessee Department of Environment and Conservation (TDEC) found exceedances of the more 

stringent criteria for chronic exposure of fish and aquatic life at least once in January 2009 for 

aluminum, cadmium, iron, and lead. Most of these exceedances were in the Emory River near the ash 

slide. TDEC criteria for thallium in waters that serve as a source of drinking water and from which fish 

are consumed have also been exceeded in some TDEC samples from both the Tennessee and Emory 

rivers, but there have been no exceedances of the Tennessee thallium standard for waters that serve as a 

source of drinking water only.618 However, the maximum levels of arsenic, mercury, and selenium from 

all standard sampling locations on the Emory, Clinch, and Tennessee rivers have been below both the 

Tennessee Fish and Aquatic Life Criterions for Continuous Concentration and the Tennessee Domestic 

Water Supply Criterions.619

Sampling results for the contaminated residential soil showed arsenic, cobalt, iron, and thallium levels 

above the residential Superfund soil screening levels. Preliminary analyses of ash, water, sediments, and 

fish tissues collected from near the spill site 18 days following the dike failure revealed the following: 

(1) Levels of arsenic and selenium were elevated above toxic thresholds in river sediments for a distance 

of at least 4.8 km downstream; (2) fish tissues in this zone contained toxic concentrations of selenium 

(above 4 mg/kg whole-body, dry weight), at and beyond the thresholds of toxicity for reproduction and 

growth;620 (3) fish exposed to ash-related toxic elements showed several histological alterations 

indicative of toxic element stress. Fish tissue sampling conducted upstream of the spill zone revealed 

contaminant levels indicative of legacy pollution from previous, permitted discharges that had taken 

place prior to the spill.621

Seven months following the spill, all fish collected still had concentrations of selenium above a toxic 

threshold, and most were still contaminated at that level 14 months after the spill. Ash-laden sediments 

were toxic to mussels and other benthic macro-invertebrates. Eighteen months after the spill, 

concentrations of arsenic in sediment pore waters were over 10 times the toxic level for sensitive benthic 

invertebrates at sites 12 km downstream. Twenty-one months after the spill, a high percentage of fish 

exhibited lesions, deformities, and infections, all symptoms of very extreme stress.622

 

617 Lemly (2010) and references therein.

618 TVA (2010a).

619 Ibid.

620 Note that U.S. EPA (2004) calculated a final chronic value for selenium of 7.91 μg/g dry weight whole body 

tissue concentration.

621 Lemly (2010) and references therein; and Appalachian State University (2009): The TVA Phase I Emory River 

Dredging Plan indicates that normal plant operations discharge 2.84 lb of dissolved selenium per day, equivalent to 

over 41,000 pounds over the service life of the plant through December 2008. TVA 2007 Toxics Release Inventory 

states that 1,111 lbs of selenium compounds were released in 2007, which is equivalent to 3.04 lbs per day 

(http://www.tva.gov/environment/air/kingston.htm#tri). Lemly (2010) estimated the monetized value of the damage 

at $29.4 million.

622 According to a December 2009 EPA Science Panel Review: “Selenium concentrations in surface water result 

from both TDEC and TVA suggest that no adverse ecological impacts in the river systems have occurred at this 

time. While there are detected concentrations of selenium in some samples within the 1 μg/L to 5 μg/L concentration 

range, these are sporadic and have not been consistently elevated. As dredging proceeds at a more rapid pace, 

monitoring of the river systems should continue.... Because of the significant time lag between selenium 
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Water quality sampling completed in June 2009 in the Clinch River indicated that levels of arsenic, lead, 

mercury, cadmium, chromium, selenium, antimony, nickel, thallium, barium and beryllium have 

exceeded WQC for drinking water, aquatic organisms and recreational uses in the River.623 Phase II 

monitoring water quality results for surface water discharging from the Clean Water Ditch (an 

interceptor ditch to divert runoff around the Swan Pond Embayment) into the Emory River between

July 2010 and July 2011 indicated that arsenic and selenium were below Tennessee’s Aquatic 

standards,624 but they exceeded the corresponding MCLs for these metals.625

TVA626 summarized a battery of air, groundwater and sediment monitoring, ecologic and biologic 

studies conducted by third parties, contending that, as of September 2010, the spill has not resulted in 

any lingering impacts. State and federal agencies concluded that the only way people could have been 

exposed to the coal ash was through direct contact with the coal ash or by ingestion in the first several 

weeks following the spill. The airborne coal ash could affect people exposed to higher concentrations of 

particulate matter, especially those with pre-existing respiratory or heart conditions. However, as of 

October 2010, of the over 200,000 air samples analyzed since the spill occurred none have exceeded 

EPA NAAQS, and the EPA stated that there was no known threat to public health from an air pollution 

exposure associated with the clean-up of the ash spill. Health monitoring found no health issues related 

to the ash release among residents living in the area around the site.627 The joint agency report also 

concluded that using municipal drinking water and springs/wells within a four-mile radius of the release 

would not harm human health, because the raw and finished water has continuously met drinking water 

standards and no evidence of groundwater contamination has been found since the spill.628 

In addition to the persistent, abnormally high selenium contents in fish tissue and reduced benthic 

macro-invertebrate populations even in areas outside the dredge zone following the Phase 1 ash 

removal,629 three additional findings suggest a potential for lingering impacts: (i) a study showed 

significant arsenic buildup in reduced river bottom sediments downstream from the spill site;630 (ii) a 

 

mobilization and biological response, the monitoring strategy should be a systematic effort to track accumulation 

over time rather than simply collecting fish periodically or when certain concentration screening levels are reached.”

623 Sierra Club (2009), attached Exhibit 1.

624 Arsenic: 0.15 mg/L; selenium: 0.05 mg/L.

625 See TVA’s bi-weekly data (July 2010 to mid-July 2011) for discharge trends of dissolved arsenic 

(http://www.tva.com/kingston/pdf/water/Embayment%20Dissolved%20Arsenic.pdf) and dissolved selenium 

(http://www.tva.com/kingston/pdf/water/Embayment%20Dissolved%20Selenium.pdf) from the Clean Water Ditch 

to the Emory River. While at no point during this monitoring period have the discharge levels exceeded Tennessee’s

WQSs, considering the increase in the concentration levels of these two contaminants in the first half of 2011, it is 

not clear why the TVA ceased presenting similar data after mid-July 2011.

626 Comment to the docket: http://www.uswag.org/pdf/2010/CCR%20Comments/TVA11192010.pdf; TVA’s Ash 

Release Environmental Monitoring website (http://www.tva.com/kingston/water/groundwater_monitoring.html).

627 OARU (2010) and Tennessee DoH (2010).

628 Public Health Assessment report, Final Release, September 7, 2010, the Tennessee Department of Health (DoH), 

jointly with the U.S. DHHS and the ATSDR Division of Health Assessment and Consultation, footnotes 178-185; 

EPRI’s comment to the docket: EPA-HQ-RCRA-2009-0640-9765; TDEC comment to the docket: EPA-HQ-RCRA2009-0640-6298. 

629 Lemly (2010). TVA downplays these findings: “So far, no significant health effects (damage or injury) have been 

observed. Some characteristics of fish health were generally poorer in 2009 immediately downstream of the ash 

spill than at upstream reference sites. Fish health effects seem to be limited to a small area and to fish species that 

reside in localized areas for extended periods of time. There was some recovery in fish health observed between 

2009 (soon after the ash spill) and before dredging was complete in 2010. Analysis of fish sampled after dredging 

(i.e. fall 2010; spring 2011; and fall 2011 fish collections) is expected to be available in spring 2012.” 

(http://www.tva.com/kingston/fish/index.htm)”.

630 Vengosh (2009) and Ruhl et al., (2009). 
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study to investigate the impact of the ash on surface water and sediment quality over an eighteen month 

period after the spill, with a specific focus on mercury and methylmercury in sediments, revealed that 

while surface water quality was not impaired with respect to total mercury concentrations, in the 

sediments of the Emory River near the coal ash spill total mercury concentrations were 3- to 4-times 

greater than sediments several miles upstream of the ash spill. Similarly, methylmercury content in the 

Emory and Clinch River sediments near the ash spill were slightly elevated (up to a factor of 3) at certain 

locations compared to upstream sediments.631, 632 (iii) Finally, results of recent monitoring of 

groundwater underneath Kingston’s coal ash disposal area, ash processing area, and gypsum disposal 

facility show exceedances of the MCL for selenium in three wells (maximum concentration of 412 ppb, 

or 8.2 times the MCL).633

A two year investigation into the environmental impacts of the spill (Jackson, 2011) revealed several 

impacts. (i) Selenium concentrations were identified above criterion continuous concentration (CCC) set 

by the U.S. EPA in total available water samples, and sediment samples were elevated up to 21 times 

background concentrations for arsenic following the spill. (ii) Fish body burdens for arsenic and 

selenium were statistically elevated in the months following the spill, particularly in redear sunfish; and 

(iii) concentration of selenium in fish tissues were found above proposed biological effects 

concentrations, particularly in redear sunfish which had hepatic selenium concentrations at levels above 

20 mg/kg. Furthermore, fish were identified with pathological abnormalities such as exopthalmus 

 

631 Deonarine et al., (2012). Up to 2 percent of the total mercury in sediments containing coal ash was present as 

methylmercury. Mercury isotope composition and sediment geochemical data suggested that elevated 

methylmercury concentrations occurred in regions where native sediments were mixed with coal ash. This coal ash 

may have provided substrates (such as sulfate) that stimulated biomethylation of mercury. The production of 

methylmercury in these areas is a concern because this neurotoxic organomercury compound can be highly 

bioaccumulative. The authors conclude that while the Emory-Clinch River system is susceptible to methylmercury 

biomagnification in the aquatic food web, as documented before the spill, and the ash appeared to influence net 

methylmercury production in river sediments, its subsequent influence on the food web remains unclear. The

methylation of mercury by sediment microbes is only an initial step towards, and not a guarantee of, food web 

accumulation. The effects of ash contamination on food web accumulation of methylmercury need to be studied 

further.

632 Before the spill, the Emory-Clinch system was already impaired with respect to mercury, due to historical 

releases from U.S. Department of Energy facilities in Oak Ridge, TN, about 20-30 km upstream along the Clinch 

River. A portion of this mercury has migrated downstream along the Clinch River, including locations near the spill. 

Furthermore, the TVA plant diverts large volumes of river water through the cooling water intake situated along 

Emory River (near its confluence with the Clinch), resulting in periodic backflows and possible mobilization of 

Clinch River sediments upstream into the Emory. Thus, the Clinch River provides a source of legacy mercury to this 

site. Other sources of mercury to the rivers could include non-point sources such as atmospheric deposition and 

runoff from a mercury-contaminated mill at Emory River Mile 11.3 (non-operational from 2002). Both the Emory

and Clinch Rivers are currently under fish consumption advisories that pre-date the ash spill. Mercury isotope 

composition in sediments (δ202113 Hg) was quantified by Deonarine et al., (2012), to identify the contribution of the 

various sources of mercury and their spatial distribution in the Emory-Clinch River system, to distinguish the legacy 

mercury from the fraction contributed by the spilled ash.

633 EIP (2011) also identifies exceedances of federal health-based guidelines for cobalt (maximum 104 ppb) and 

manganese (maximum 26,900 ppb, 90 times the LHA.) According to TVA Inspector General (2011), at Kingston, 

there was an MCL exceedance for arsenic in June 2009. However, additional monitoring on a monthly basis from 

September through December 2009 was performed, and the exceedance was not repeated. Because the exceedance 

was not repeated, it did not result in any of TDEC’s three levels of assessment. Additional exceedances during the 

monitoring results reviewed for calendar years 2008-2009 included antimony (four cases), aluminum (three), 

ammonia (three), and chromium (one case).
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(popeye), histopathological changes in the gills, reduced condition index, bacterial infections, and fin 

erosion.634

Benthic invertebrate communities were assessed in December 2010, following the completion of 

dredging in summer 2010. Benthic invertebrate communities were sampled at transects spread across 

approximately 20 miles of river that includes both riverine and reservoir-like conditions. The community 

composition was reflective of a reservoir system, with dominant taxa being insect larva, bivalves and 

aquatic worms. Most community metric results were similar for ash-impacted areas and upstream 

reference areas. Variation in the benthic community was correlated more with habitat than with sediment 

chemistry or residual ash. Although released ash undoubtedly had some initial impacts on the benthic 

community in this study, the severity of these effects appears to be limited to the initial smothering of the 

organisms followed by a rapid response and the initial start of recovery post-dredging.635

Groundwater: Results of recent monitoring of groundwater underneath Kingston’s coal ash disposal 

area, ash processing area, and gypsum disposal facility show several exceedances and elevated 

concentration values for several metals. The gypsum disposal area, as described above, experienced a 

sinkhole shortly after it was put into service in 2010. This event affected wells G4B, G5A, G5B, and 

G6B, causing selenium concentrations as high as 412 μg/L (or 8.2 times the MCL). Whereas Selenium 

levels have declined following TVA’s remediation and repair work, they still remain elevated above 

background concentrations, and, in well G5B, above the MCL.636

Resolution: On January 12, 2009, TDEC issued an order requiring TVA to clean up the spill, monitor 

and repair damage to the environment, and develop a short- and long-term ash management plan for the 

Kingston Power Plant and its six other coal fired plants in Tennessee.637 The order also required TVA to 

assess the structural integrity of all of its CCR surface impoundments and landfills and to make 

structural improvements to all the regulated units established as having structural integrity concerns. On

May 11, 2009, EPA issued an Administrative Order of Consent outlining cleanup requirement under 

CERCLA. TVA agreed to clean up over five million tons from the Emory River and surrounding areas 

of spilled coal ash.638 The ash disposal cell that failed and the adjacent ash pond are to be closed and a 

 

634 However, following an analysis of young bluegill sunfish demonstrating exopthalmus, no direct correlation could 

be made between these individuals and highly elevated contaminant concentrations. Fish populations are showing 

sustained elevation of toxic elements two years following the spill but are also likely benefitting from immigration/ 

emigration of individuals from healthy source populations creating sustained populations.

635 Buys et al., (2014).

636 EIP (2011) and EIP (2013, Fig. 9-1 and 9-3 and narrative). These references also identify exceedances of federal 

health-based guidelines for cobalt (maximum 104 ppb) and manganese (maximum 26,900 ppb, 90 times the LHA), 

accompanied by elevated cobalt, beryllium, cadmium, nickel, boron, sulfate, and TDS. According to TVA Inspector 

General (2011), at Kingston, there was an MCL exceedance for arsenic in June 2009. However, additional 

monitoring on a monthly basis from September through December 2009 was performed, and the exceedance was not 

repeated. Because the exceedance was not repeated, it did not result in any of TDEC’s three levels of assessment. 

Additional exceedances during the monitoring period of calendar years 2008-2009 included antimony (four cases), 

aluminum (three), ammonia (three), and chromium (one case).

637 Scott (2010). An ad-hoc, interagency Advisory Committee was tasked to (i) determine if the investigation by 

TVA of the mechanism of failure at Kingston used sound engineering principles and practice, and (ii) determine if 

the structural evaluation by TVA of other CCR facilities used sound engineering principles and practice. In addition, 

TVA completed an Environmental Assessment to evaluate cleanup options resulting from the CCR spill (TVA, 

2009).

638 Lemly (2010) and references therein: The aquatic portion of cleanup is to be done in three phases: (1) suction 

dredging of 62 hectares of river channel and transport of ash by rail to a landfill disposal site in Alabama 

(completed), (2) excavation and/or dredging of 33 hectares of embayment area and on-site disposal at the Kingston 

Fossil Plant, and (3) excavation and/or suction dredging of 20 hectares of perimeter areas and on-site disposal at the 
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new disposal cell constructed to receive remaining ash from the cleanup. These efforts were projected to 

take up to four years to complete, and were estimated to cost $1.2 billion.

In November 2009, The Sierra Club petitioned Tennessee’s Water Quality Control Board contending 

that TDEC has violated the CWA and Tennessee’s Water Quality Control Act by failing to require that 

KIF submit to WQBELs under the October 16, 2008 NPDES No. TN00080870.639

In June 2009, the Tennessee Department of Health (TDEH) and the TDEC issued a recreation advisory 

for Watts Bar Reservoir, warning the public against boating, swimming, and fishing in the Emory River 

section of the reservoir, and restated a consumption advisory for mercury- contaminated fish. On June 

14, 2010, TDEC issued a Consent Order against the TVA assessing $11.5 million in penalties in 

response to the Kingston release due to violations of the Tennessee WQC Act and the Tennessee SWD 

Act.

The Emory River was reopened May 29, 2010, after TVA removed more than 3.5 million cubic yards of 

ash and sediment from the river and adjoining areas.640 On December 1, 2010, the first, “time critical” 

phase of the cleanup, was completed, when the last of 414 train shipments of recovered coal ash was 

transported for disposal at the EPA-approved RCRA Subtitle D Arrowhead landfill in Perry Co., 

Alabama.641 The second phase of the cleanup was approved by EPA in January 2011: in June 2011, TVA 

began consolidating spilled ash that did not enter the river. The ash is being stored on-site in the dredge 

cell that is being rebuilt and reinforced to resist earthquakes.642 In October 2011, TVA completed ash 

excavation from the north embayment (Berkshire Slough), removing more than 1.2 million cubic yards 

of material.643 For a recent status review of the clean-up operation, see Zeller (2011). In November 2012, 

the final phase of the cleanup – monitored natural recovery – was selected to address an estimated 

500,000 cubic yards of ash remaining at the bottom of the Emory and Clinch Rivers.644 Under the 

 

Kingston Plant. Phase 2 and 3 operations will continue until 2014, and TVA acknowledges that despite the effort, a 

large amount of ash will remain in the rivers and re-suspended ash will move further downstream.

639 Sierra Club (2009). The Petitioners claim that in the October 2008 NPDES Permit, while TDEC acknowledges 

that “metals such as arsenic, mercury, boron, cadmium and zinc” are water quality “constituents of concern” in 

KIF’s scrubber wastewater, it still allows KIF to discharge 1 MGD of untreated scrubber wastewater into KIF’s 

settling pond, and water from the settling pond will empty into the Clinch river, without setting any effluent limits 

on the amount of mercury and other toxic metals, sulfates and TDS that will be discharged in the wastewater from 

the scrubber system at KIF. TDEC justified not setting any WQBELs that reflect impaired water quality in the 

Clinch River on the ground that EPA, in its 1982 Effluent Guidance, has not required such limits for metals. 

640 According to a December 7, 2011 Factsheet posted on TVA’s website: http://www.tva.gov/sites/kingston.htm, 

accessed Online June 2012. However, according to Lemly (2010), notwithstanding the acknowledgement in the 

NPDES permit for the period 2004-2008 that “ The discharge from Outfall 002 may contain several different 

pollutants, the combined effect of which has a reasonable potential to be detrimental to fish and aquatic life”, 

following the 2008 spill, the NPDES permit was renewed without establishment of discharge limits for the 16 

primary toxic elements including arsenic, mercury and selenium, despite prior, persistent toxicity of discharges to 

fish and invertebrates.

641 TVA’s December 7, 2011 Factsheet, ibid. 

642 According to TVA’s Kingston Recovery Project update, as of March 2012, the Perimeter Wall Stabilization 

(PWS) project comprises an 11,500 feet long underground wall being constructed around the perimeter of the ash 

storage area. When complete, the wall will surround the Dredge Cell, Ash Pond, and Lateral Expansion areas. The 

PWS is designed to withstand a 6.0-magnitude earthquake on the East Tennessee fault and a 7.6 magnitude 

earthquake on the New Madrid fault (West Tennessee).

643 That portion of the cleanup effort is expected to be completed in 2014. 

http://news.bna.com/deln/display/batch_print_display.adp, November 8, 2012.

644 According to EPA’s approval letter of the final cleanup plan, this alternative relies on natural processes such as 

mixing, scouring/redeposition and sedimentation (burial) to reduce the relatively low risks posed to benthic macro 

invertebrates (mayflies and snails) and to birds that prey on them. This alternative was selected because “it meets the 
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EPA/Superfund Division-approved final cleanup plan,645 TVA will monitor sediment, aquatic wildlife, 

and groundwater annually for 30 years, with five-year reviews of monitoring approaches and locations, 

at a total cost of $10 million. Modeling of sediment transport also will be conducted.646

TVA purchased some 900 acres of residential properties in the immediate vicinity of the spill. TVA 

developed a long-term land use plan for some of the purchased property and on August 2, 2011, 

conducted a public meeting in Kingston to share its conceptual plan with the community. TVA will

retain ownership of this property, designating some as recreational and green space areas, while retaining 

some as permanent plant buffer. Finally, TVA intends to invest up to $2 billion to convert all of its ash 

and gypsum ponds from wet storage to dry storage in eight to 10 years.647

In 2010, two class action suits were filed against TVA.648 In Anita Auchard, et al. v. TVA, Case No. 3:09-

CV-54, filed on March 26, 2010, a U.S. District judge granted TVA’s Motions to dismiss all claims for 

punitive damages against TVA and to strike all jury demands against TVA.649 On August 23, 2012, a 

U.S. District judge ruled in Chesney, et al. v. TVA, et al., Case No. 3:09-CV-09 that TVA is legally 

responsible for the December 2008 incident and that TVA would have to pay unspecified damages to 

more than 800 plaintiffs who sued after the spill.650 On August 1, 2014, a settlement has been announced 

with more than 800 property owners, whereby TVA would pay the plaintiffs $28.7 million. The U.S. 

District Court Judge still has to approve it.651

In response to the appearance of the sinkhole in the FGD landfill, on December 17, 2010, TDEC issued 

an Enforcement Order for Corrective Action, for KIF’s violation of both the State’s Water Quality 

Control Act and the State’s Solid Waste Disposal Act.652

 

identified Removal Action Objectives, provides the best balance with respect to effectiveness and implementability, 

is the most cost-effective, and is also generally supported by the community.” 

645 http://www.tva.com/kingston/admin_record/pdf/NTC/NTC85.pdf

646 The selection process involved having TVA issue the Phase 3 Engineering Evaluation/Cost Analysis Report for 

the three suggested alternatives, a Baseline Human Health Risk Assessment, and a Baseline Ecologic Risk 

Assessment for a 60-day public comment period that ended October 10, 2012. According to 

http://news.bna.com/deln/display/batch_print_display.adp, November 8, 2012, the two other initially proposed 

alternatives were (i) placing a granular cap of 6” rocks over the spilled material in the river bed, coupled with 

monitoring (projected cost: $44.8 million), and (ii) dredging the remaining materials (estimated cost: $179.1 

million). http://www.newsobserver.com/2012/11/08/2470757/community-to-hear-final-plan-to.html

647 The October 2010 draft renewed NPDES Permit No. TN0005452 required that KIF submit an Ash Pond Closure 

Plan, and estimated schedule and closure actions to be taken for conversion from wet ash to dry ash handling 

(TDEC, 2010). As of March 2012, the wet-to-dry ash storage conversion is complete at the Kingston Fossil Plant. 

Gypsum, a byproduct of the scrubbing process, is stored dry in a lined storage facility.

648 Auchard v. Tennessee Valley Authority, No. 3:09-cv-54 (E.D. Tenn. Jul. 1, 2010) and Blanchard v. Tennessee 

Valley Authority (proposed). For a brief summary, see Fehrenbach et al., (2011). 

649 http://www.balch.com/files/upload/Mays%20v%20TVA%20.%20Mar%2026%202010.pdf

650 According to Chicago Tribune News (2012), U.S. District Judge Thomas Varlan wrote “Had TVA followed its 

own mandatory policies, procedures, and practices, the subsurface issues underlying the failure of North Dike would 

have been investigated, addressed, and potentially remedied before the catastrophic failure." For the full court 

decision, see http://www.tned.uscourts.gov/docs/tva_ash_spill_ruling.pdf.

The TVA said in a statement that it had already purchased nearly 180 properties affected by the spill, settled more 

than 200 other claims submitted by residents and paid $43 million to the Roane County Economic Development 

Foundation for use by communities in the affected area. TVA reported in December 2011 that it paid nearly $11 

million on outside legal help to battle lawsuits from the spill. 

651 ABC News (2014).

652 TDEC General Counsel (2010). KIF has violated Tennessee Code Annotate (T.C.A.) §69-31-101 et seq., the 

Water Quality Control Act, and the NPDES Permit TN00080870, for discharges from the gypsum detention pond 

into KIF’s discharge channel via Outfall 01A. By allowing the discharge of solid wastes from the landfill into the 
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Previous Basis for Consideration: Administrative: On May 11, 2009, TVA agreed to clean up more 

than 5 million tons of spilled coal ash under an administrative order and agreement on consent under 

CERCLA issued by the USEPA, and in early January 2009, the Tennessee Wildlife Resources Agency 

(TWRA) issued a fish advisory for the lower section of the Emory River.

ICF (2010) Rationale: Proven Damage. <Large scale failure impacted river environment; 

Administrative order included fish advisory due to risk from CCR contaminant.>

Postscript: Scientific: A significant weight of evidence has accumulated since the proposed CCR rule in 

support of a substantial ecologic damage and a potential for long-term accumulation and retention of 

toxic metals (arsenic and methylmercury) under anaerobic substrate conditions in the Emory/Clinch 

River systems down-stream from the ash spill area. In addition, groundwater associated with the new 

gypsum dewatering facility was impacted by selenium. Administrative: The U.S. Eastern District Court 

of Tennessee decided that TVA is legally responsible for the December 2008 incident and that TVA 

would have to pay unspecified damages to more than 800 plaintiffs who sued after the spill.

References

Buys et al (2014): Ecological Risk Assessment for Residual Coal Fly Ash at Watts Bar Reservoir, 

Tennessee Limited Alteration of Riverine-reservoir Benthic Invertebrate Community Following 

Dredging of Ash-contaminated Sediment. David J. Buys, Amber R. Stojak, William Stiteler, Tyler F. 

Baker, Integrated Environmental Assessment and Management, August 2014. Accessed Online 

September 2014.

http://www.researchgate.net/publication/265053816_Ecological_Risk_Assessment_for_Residual_Coal_

Fly_Ash_at_Watts_Bar_Reservoir_Tennessee_Limited_Alteration_of_Riverinereservoir_Benthic_Invertebrate_Community_Following_Dredging_of_Ash-contaminated_Sediment

Jackson (2011): Ecological Impacts of the TVA Coal Ash Spill in Kingston, TN: a Two Year 

Assessment. Daniel Lee Jackson, M.Sc. thesis submitted to the Appalachian State University, August 

2011. Accessed Online September 2014. 

libres.uncg.edu/ir/asu/f/Jackson,%20Daniel_2011_Thesis.pdf

Federal Register/Vol. 75, No. 118 /Monday, June 21, 2010 /Hazardous and Solid Waste Management 

System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from 

Electric Utilities (CCR Proposed Rule). Accessed Online June 2012.

http://www.gpo.gov/fdsys/pkg/FR-2010-06-21/html/2010-12286.htm

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #26. ICF, 10/2010.

AECOM (2009): Executive Summary of Root Cause Analysis of Kingston Dredge Pond Failure on 

December 22, 2008, Kingston Fossil Plant, Harriman, Tennessee. AECOM, Project No. 60095742, June 

25, 2009. Accessed Online February 2013.

http://www.tva.gov/kingston/rca/FINAL-062609_Executive_Summary-REV3.pdf

 

Clinch River, at an estimated rate of 20 to 100gpm for several days, KIF has violated the conditions of the NPDES 

Permit, T.C.A. §69-3-108 (b)(6). In addition, KIF has violated the Tennessee Solid Waste Disposal Act, T.C.A. §68-

211-101 et seq., and the State’s Solid Waste Disposal Permit IDL73-0211 for the disposal of gypsum generated from 

burning coal at KIF.
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EIP (2011): Risky Business: Coal Ash Threatens America’s Groundwater Resources at 19 More Sites. 

EIP Report, Dec. 13, 2011. Accessed Online June 2012. 

http://www.environmentalintegrity.org/documents/121311EIPThirdDamageReport.pdf

Appalachian State University (2009): Preliminary summary report from water, sediment, and fish 

samples collected at the TVA ash spill by Appalachian State University, Appalachian Voices, Tennessee 

Aquarium, and Wake Forest University. Babyak, C., S. Carmichael, S. Edwards, A. George, D. Lemly, 

D. Lisenby, B. Payne, and S. Tuberty, Appalachian State University, Boone, North Carolina, 2009. 

Accessed Online June 2012. 

http://www.appvoices.org/resources/AppVoices_TVA_Ash_Spill_Report_May15.pdf 

Lemly (2010): A White Paper on Environmental Damage from Coal Combustion Waste: The Cost of 

Poisoned Fish and Wildlife, A. Dennis Lemly, EPA Docket ID No. EPA–HQ–RCRA–2009–0640, 

December 15, 2010. Accessed Online June 2012.

http://prairierivers.org/wp-content/uploads/2012/03/Lemly-2010-Environmental-Damage-fromCCW.pdf 

Ruhl, Laura et al., (2010): Survey of the Potential Environmental and Health Impacts in the Immediate 

Aftermath of the Coal Ash Spill in Kingston, Tennessee, Environmental Science and Technology, 2009, 

Volume 43, Number 16, pp. 6326–6333. Accessed Online June 2012. 

http://www.ejrc.cau.edu/Statements%2010-27-09/Attachment%202_Duke%20Study.pdf 

Vengosh (2009): The Tennessee Valley Authority’s Kingston Ash Slide: Potential Water Quality Impacts 

of Coal Combustion Waste Storage, A testimony to the Subcommittee on Water Resources and 

Environment, U.S. House of Representatives, by Prof. A. Vengosh, Division of Earth and Ocean 

Sciences, Nicholas School of the Environment, Duke University, Durham, NC, March 2009. Accessed 

Online June 2012. 

http://republicans.transportation.house.gov/Media/file/TestimonyWater/2009-03-31--Vengosh.pdf

ORAU (2010): Oak Ridge Associated Universities, Kingston Project Surveillance Program, Baseline 

Medical Screening Results, August 17, 2010, in cooperation with the Vanderbilt University Medical 

Center physician medical toxicologists. Accessed Online June 2012. 

http://www.orau.org/documents/kingstonproject/Kingston-Fly-Ash-Results-Report.pdf

USEPA, Region 4, Administrative Order and Agreement on Consent, TVA Kingston Fossil Fuel Plant, 

Tennessee Valley Authority Release Site, Roane County, Tennessee, Docket No.: CERCLA-04-2009-

3766, May 2009. Accessed Online June 2012.

http://www.epa.gov/region4/kingston/May8TVAKingstonFinal106Order.pdf

EPA Science Panel Review (2009): Review of Potential Selenium Issues Following a Coal Ash Spill at 

the Tennessee Valley Authority Kingston Fossil Plant, an EPA Science Panel Review Paper Prepared at 

the Request of the Senate Committee on Environment and Public Works Staff, Last Updated December 

2009 (Based upon public comments received on the August 18, 2009 Review). Accessed Online June 

2012.

http://www.epakingstontva.com/Selenium%20Reports/Selenium%20review%20paper_revised_121709

%20with%20appendices.pdf

Sierra Club (2009): Petition for Statutory Appeal before the Tennessee Water Quality Control Board in 

the Matter of Tennessee Department of the Environmental and Conservation, Division of Water 

Pollution Control, NPDES Permit No. TN00080870, Nov. 12, 2009. Accessed Online August 2014.
I. CCR Proven Damage Cases December 2014

152

http://environmentonline.state.tn.us:8080/pls/enf_reports/f?p=9034:34051:11892922348473::NO:34051:P34051_PERMIT

_NUMBER:TN0080870

Pond Failure Slides (2009): TVA Kingston Ash Pond Failure Photo Slide Show. January 20, 2009. 

Southern Appalachian Information Node, National Biologic Information Infrastructure. Accessed Online 

October 2014.

http://www.slideshare.net/mountainsol/tva-kingston-ash-pond-failure-photo-slide-show-presentation

Zeller (2011): TVA Kingston Ash Recovery Project, Roane County, Tennessee: Status Update, 

December 8, 2011, Craig Zeller, P. E., USEPA Region 4 Superfund Division. Accessed Online June 

2012.

http://www.tva.gov/kingston/public_meetings/presentations/EPA%20Presentation%20FINAL%2012-8-

2011.pdf

Scott (2010): TVA Kingston Fossil Fuel Plant Release Site Removal Update. Barbara Scott, TDEC, 

March 17, 2010. Accessed Online June 2012.

http://www.tnenvironment.com/Pres10/Scott.pdf

TDEC General Counsel (2010): Commission’s Order, Case No. SWM10-0010 & WPC10-0135, In the 

Matter of Tennessee Authority. TDEC Office of General Counsel, December 17, 2010. Accessed Online 

August 2014.

http://environmentonline.state.tn.us:8080/pls/enf_reports/f?p=9034:34051:6516918967901::NO:34051:P34051_PERMIT_

NUMBER:TN0005452, under Order.

EPA (2004): Draft aquatic life water quality criteria for selenium – 2004, EPA-822-D-04-001. U.S. 

Environmental Protection Agency, Office of Water (4304), Washington, DC. 2004. Accessed Online 

July 2012.

http://water.epa.gov/scitech/swguidance/standards/criteria/aqlife/pollutants/selenium/upload/complete2.pdf

Chicago Tribune News (2012): Tennessee Valley Authority liable for 2008 coal ash spill-ruling. James 

B. Kelleher, Reuters, August 23, 2012. Accessed Online August 2012.

http://www.chicagotribune.com/news/sns-rt-us-usa-environment-tva-spillbre87n001-

20120823,0,7718166.story

The Washington Post Business (2012): Federal judge rules TVA is liable for 2008 coal ash spill, utility 

on hook to pay damages, Associated Press, August 23, 2012. Accessed Online August 2012.

http://www.washingtonpost.com/business/federal-judge-rules-tva-is-liable-for-2008-coal-ash-spillutility-will-have-to-pay-damages/2012/08/23/12aa01dc-ed49-11e1-866f-60a00f604425_story.html

 

Fehrenbach et al., (2011): Recent Developments in Coal Ash Disposal/Reuse Litigation. The American 

Bar Association's Annual Review 2011, Volume 2: Section 15.3. John Fehrenbach, Eric P. Gotting, Scott 

P. DeVries, Yelitza V. Dunham, Averil M. Edwards, and Michael T. Champion, Winston & Strawn LLP, 

and Andreas H. Leskovsek, Dynegy Inc. Accessed Online July 2012. 

http://www.winston.com/siteFiles/Publications/Ann.Rev.11ch15%20Environmental%20Law.pdf
I. CCR Proven Damage Cases December 2014

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TVA Inspector General (2011): Final Report – Inspection 2009-12991 – TVA's Groundwater Monitoring 

at Coal Combustion Products Disposal Areas, TVA Office of the Inspector General Inspection Report, 

June 21, 2011. Accessed Online November 2012.

http://oig.tva.gov/reports/PDF/11rpts/2009-12991.pdf

Deonarine et al., (2012): Environmental Impacts of the Tennessee Valley Authority Kingston Coal Ash 

Spill. 2. Effect of Coal Ash on Methylmercury in Historically Contaminated River Sediments. Amrika 

Deonarine, Gideon Bartov , Thomas Martin Johnson , Laura Ruhl , Avner Vengosh , and Heileen HsuKim, Environ. Sci. Technol., Web Publication Date: December 18, 2012. Accessed Online January 2013.

http://pubs.acs.org/doi/abs/10.1021/es303639d?source=cen

TVA (2002): Kingston Fossil Plant Units 1 Through 9 Reduction Systems for Nitrogen Oxide Control, 

Draft Environmental Assessment, April 2002. Accessed Online February 2013.

http://www.tva.gov/environment/reports/kingston/index.htm

TVA (2008): Operational Improvements to Optimize Selective Catalytic Reduction Systems at Five 

Fossil Plants Tennessee, Alabama, and Kentucky, Supplemental Environmental Assessment, Project 

Number 2007-32, TVA, April 2008. Accessed Online February 2013.

http://www.tva.gov/environment/reports/scro/2007-32_scr_opt_fea.pdf

TVA (2006): Installation of Flue Gas Desulfurization System at Kingston Fossil Plant, Roane County, 

Tennessee, Final Environmental Assessment, Project Number 2005-81, Tennessee Valley Authority, 

April 2006. Accessed Online February 2013.

http://www.tva.gov/environment/reports/kingston2/index.htm

TVA (2010a): Installation of a Mechanical Gypsum Dewatering System at Kingston Fossil Plant, Roane 

County, Tennessee, Final Supplemental Environmental Assessment, Project Number 2005-81, 

Tennessee Valley Authority, December 2010. Accessed Online February 2013.

http://www.tva.gov/environment/reports/KIF_Gypsum/2005-81_KIF_GypsumDewateringFEA.pdf

TDEC (2010): Draft NPDES Permit No. TN0005452, TVA - Kingston Fossil Plant (KIF), Harriman, 

Roane County, Tennessee. State of Tennessee Department of Environment and Conservation, Division 

of Water Pollution Control, October 11, 2010. Accessed Online August 2014.

http://environmentonline.state.tn.us:8080/pls/enf_reports/f?p=9034:34051:6516918967901::NO:34051:P34051_PERMIT_

NUMBER:TN0005452, Draft Permit.

TVA (2009): Emergency Dredging for the Kingston Fossil Plant Ash Dike Failure, Roane County, 

Tennessee, Final Environmental Assessment. Tennessee Valley Authority, in Cooperation with U.S. Fish 

and Wildlife Service and the Tennessee Wildlife Resources Agency, March 2009. Accessed Online 

August 2014.

http://www.tva.gov/environment/reports/kingston_dredge/environmental_assessment.pdf

TVA (No date, presumably 2009): TVA’s Conversion of Wet Ash and Gypsum to Dry Storage. TVA. 

Accessed Online August 2014.

http://www.tva.gov/news/Kingston/dry_ash.pdf

TVA (2010b): Kingston Dry Fly Ash Conversion, Roane County, Tennessee, Final Environmental 

Assessment, Project Number 2009-76, Tennessee Valley Authority, June 2010. Accessed Online 

February 2013.
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154

http://www.tva.gov/environment/reports/kif_dry_ash/FEA.pdf

Dewberry Consultants (2013): Coal Combustion Residue Impoundment Round 11 - Dam Assessment 

Report, Kingston Fossil Plant, Tennessee Valley Authority, Harriman, Tennessee, Dewberry 

Consultants, LLC, April, 2013. Accessed Online July 2014.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/index.htm#T

ABC News (2014): Utility to Pay Tennessee Coal Ash Victims $27.8M. Nashville, Tennessee, August 1, 2014. 

Accessed Online August 2014.

http://abcnews.go.com/US/wireStory/utility-pay-tenn-coal-ash-spill-victims-278m-24809376

PR27. DOE Oak Ridge Y-12 Plant Chestnut Ridge Operable Unit 2, Department of 

Energy, Oak Ridge, Tennessee

Type: Surface Impoundment and an Abandoned (Limestone?) Quarry.

Brief Description/Impact: Built in 1943 as part of the Manhattan Project, the original mission of the 

Oak Ridge Y-12 Plant was to use an electromagnetic process to separate uranium isotopes. This mission 

continued till 1993. Chestnut Ridge Operable Unit (OU) 2 consists of Upper McCoy Branch (UMB), the 

Filled Coal Ash Pond (FCAP), and the area surrounding the sluice channel formerly associated with coal 

ash disposal in the FCAP. UMB runs from the top of Chestnut Ridge across the FCAP into Rogers 

Quarry (RQ). The sluice channel area extends approximately 1,000 feet from the crest of Chestnut Ridge 

to the edge of the FCAP.653, 654

The FCAP is an 8.5 acre ash retention surface impoundment used to dispose of coal ash slurry from the 

Y-12 steam plant. It was constructed in 1955 by building an earthen dam across a northern tributary of 

UMB. After the surface impoundment was filled to capacity (1967), the slurry first released directly into 

UMB then was diverted (1989) through a bypass pipe to the RQ. In essence, ash sluice water basically 

flowed over or across the filled holding pond which had exceeded its holding capacity for an unknown 

period of time.

In 1990, disposal of ash into RQ was discontinued when a chemical vacuum system and a bottom ash 

dewatering system were installed at the plant. Both fly ash and bottom ash are now disposed in a landfill. 

Meanwhile, erosion of both the spillway and the ash resulted in ash release into the UMB, generating an 

ash embankment of up to 4-feet high.655

 

653 According to DOE/EM, land use for the Chestnut Ridge Area Operable Unit 2 (the Filled Coal Ash Pond/Upper 

McCoy Branch) has been documented in the Feasibility Study alternative screening process. Remediation will have 

included stabilization of the dam, which will remain under Department of Energy control. The Chestnut Ridge area 

includes many waste management areas. These areas were designated for evaluation under the CERCLA process 

because they were designated to remain Controlled Access, regulated under RCRA.

654 For the geology, geohydrology (including karst flow features of the Knox Aquifer), and groundwater and surface 

water contamination of the Chestnut Ridge area, see AJA Technical Services (1997), Sections 2.1-2.11. For 

groundwater flow direction and rate, point-of-compliance concentration trends, plume delineation, and quantitative 

trend analyses, see Section 4 of the AJA Technical Services (1997). For facility maps, geologic cross-sections, 

groundwater iso-potential maps, and groundwater monitoring well sampling results for the period 1990-1996, see 

Appendix A of the AJA Technical Services (1997).

655 Cherrie et al., (2000). 
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The RI/FS revealed the following constituents with exceedance of MCLs and/or MCLs: surface water in 

UMB: arsenic, aluminum, iron, and manganese; in spring water: arsenic, aluminum, lead, iron, and 

manganese; in groundwater: aluminum, iron, and manganese.656 Water quality samples taken between

July 1986 and July 1990 showed arsenic in McCoy Branch exceeded the recommended maximum 

concentration (50 mg/L) for protection of aquatic life from July 1986 until July 1989 and from January 

1990 until May 1990. Selenium concentrations in McCoy Branch exceeded 10 mg/L from July 1986 

through January 1989.657

Toxicity testing did not show significant evidence for toxic conditions in UMB, but bioaccumulation 

studies indicated that concentrations of selenium, arsenic, and possibly thallium were elevated in 

largemouth bass from RQ; arsenic exceeded screening criteria; some fish from RQ had deformed bony 

structures, and downstream sunfish populations had high percentages of deformed heads and eroded fins; 

and no fish populations were found above RQ. In addition, selenium uptake into plants is a possible 

source of exposure to soil invertebrates and small mammals.658 Overall, fish community data indicated 

environmental stress from coal ash inputs, ranging from complete elimination above Rogers Quarry, to 

altered species composition, trophic composition, and a profound increase in fish deformities below 

Rogers Quarry.659

Efforts to reintroduce fish to Upper McCoy Branch in the mid-1990s were unsuccessful, but were 

attempted again in 2006-2009. As of 2009, two species were surviving due to stocking. The ecosystem 

originally supported 15 fish species. Because of concerns about human health, “no hunting” signs were 

posted along the perimeter of the coal ash pond in 1997. However, no such warnings were posted along 

McCoy Branch or at Rogers Quarry, which remained open for public access for both fishing and Oak 

Ridge Reservation game hunts that were held several times a year. Concentrations of selenium in muscle 

fillets of largemouth bass from RQ equaled or exceeded consumption restriction advisory levels (10ppm 

dry weight, or 2.5ppm wet weight) from 1990-2009. 

Resolution: In the mid-1980s, the Y-12 plant began investigation and groundwater monitoring at a 

number of locations within its boundaries, as required under RCRA and by the Tennessee Department of 

Environmental Conservation (TDEC). The entire Oak Ridge site was placed on the NPL in 1989 

(Placement on NPL for groundwater and surface water contamination from coal ash as a separate OU).

In 1993, a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 

Remedial Investigation and Feasibility Study began at Operable Unit 2 and was completed in March 

1995. Biological monitoring has also been conducted at the site as part of a RCRA Facility Investigation 

(RFI) required by the 1984 HSWA and as part of the Phase I Remedial Investigation. A remedial action 

was conducted to stabilize the filled coal ash pond, McCoy Bridge dam holding contaminated pond 

sediments in place. A wetland, removed during stabilization activities, was re-constructed as part of the 

remedial action. 

 

656 Feasibility Study (1994), and Cherry et al., (2000). Ground water contamination was monitored at four down 

gradient wells below the ash pond and concentrations for five of six constituents were higher than up-gradient well 

concentrations of these constituents. Contamination was mainly prevalent in the first down-gradient well (GW 672) 

closest to the ash pond discharge and aluminum, manganese and zinc were measured in elevated concentrations at 

the other three wells located up to 2,000 ft away. Aluminum reached 910 μg/L at GW 672 compared to the 

concentration range in up-gradient wells of <20-50 μg /L. Iron at 11 mg/L in GW 672 was two orders of magnitude 

higher than in the up-gradient wells (<0.004-0.15 mg/L). Zinc in all down-gradient wells was high (20-70 μg /L) 

compared to the up-gradient wells (<1-8 μg /L).

657 Ryon (1992), in Cherry et al., (2000).

658 Lemly (2010) estimated the monetized value of damage at $1.6 million.

659 Cherry et al., (2000).
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Physical work was completed and the remedial action report was approved in 1997.660 However, the 

selected remedy does not satisfy the statutory (CERCLA) preference for treatment, which is to 

permanently and significantly reduce toxicity, mobility, and volume of the contamination. The preferred 

outcome is not possible because treatment of the large volume of coal ash at this site was deemed “not

practicable”. The ash will remain in place at the site, and surface water will receive limited treatment.

Institutional controls will restrict access to the contamination and reduce risk to human health. Actions 

taken to isolate the ash, restrict animal access, and reduce contaminant migration to surface water should 

reduce risk to ecological receptors.661

Previous Basis for Consideration: This case has been categorized as a proven ecological damage 

case based on scientific documentation of impacts to fish and other wildlife on-site. Scientific:

Exceedances of primary MCLs and SMCLs were detected in on-site monitoring locations. 

Administrative: Federal RCRA and TDEC requirements, including placement of the entire Oak Ridge 

Reservation on the NPL.

662

Other Considerations

 Co-Managed wastes but administered in NPL as separate Operable Unit 

 Placement on NPL for groundwater and surface water contamination from coal ash as separate 

OU

 Onsite arsenic above primary MCL, aluminum iron and manganese above SMCL

 Ecological damage from onsite impacts to fish and other wildlife including bioaccumulation, 

reported fish deformities 

 Fish deformities and potentially elevated arsenic and selenium 

ICF (2010) Rationale: Proven Damage. <Documented surface water impacts to biota included 

bioaccumulation, fish deformities, and biota population decline. The site was placed on NPL with the 

coal ash landfill as a separate operable unit indicating specific damage from CCRs.>

References

EPA (2007): Coal Combustion Waste Damage Case Assessments, Case #9, docket ID EPA-HQ-RCRA2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #9. ICF, 10/2010.

EPRI (2010): Damage Case Report, V. 2: Case Summaries, EPRI, September 2010. Accessed March 

2012.

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%2

0Product%20Damage%20Cases

DOE/EM (undated): U.S. Department of Energy/Environmental Managementy. Oak Ridge Y-12 Plant. 

Accessed Online June 2012. http://www.em.doe.gov/bemr/bemrsites/oryp.aspx

 

660 EPA Superfund Record of Decision (1996).

661 Lemly (2010).

662 EPA (2007).
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Remedial Investigation Report on Chestnut Ridge Operable Unit 2 (Filled Coal Ash Pond/Upper McCoy 

Branch) at the Oak Ridge Y-12 Plant Oak Ridge, Tennessee (Baseline Risk Assessment Included) 

[DOE/OR/01-1268&D2] [Y/ER-172&D2].

Cherry et al., (2000): Cherry, Donald S., Rebecca J. Currie and David J. Soucek, 2000: Review of the 

Global Adverse Environmental Impacts to Ground Water and Aquatic Ecosystems from Coal 

Combustion Wastes; Hoosier Environmental Council and Citizens Coal Council Indianapolis, Indiana, 

March 28, 2000. Accessed Online June 2012. http://citizenscoalcouncil.org/wpcontent/uploads/2012/04/A-REVIEW-OF-THE-ADVERSE-ENVIRONMENTAL-IMPACTS-OFCOAL-COMBUS.htm

Feasibility Study (1994): Feasibility Study for the Y-12 Chestnut Ridge Operable Unit 2 Filled Coal Ash 

Pond, Oak Ridge, Tennessee. DOE/OR/02-1259&D1. August 1994. 

Ryon (1992): Ecological Effects of Contaminants in McCoy Branch 1989-1990. Ryon, M. G., 

ORNLHM - 11926. Oak Ridge National Laboratory, Oak Ridge, TN. 84 pp, 1992. Accessed Online June 

2012. http://www.ornl.gov/info/reports/1992/3445603528127.pdf

EPA Superfund Record of Decision: Oak Ridge Reservation (USDOE), EPA ID: TN1890090003, OU 

26, OAK RIDGE, TN, 02/21/1996, EPA/ROD/R04-96/260. Accessed Online June 2012. 

http://www.epa.gov/superfund/sites/rods/fulltext/r0496260.pdf 

Lemly (2010): A White Paper on Environmental Damage from Coal Combustion Waste: The Cost of 

Poisoned Fish and Wildlife, A. Dennis Lemly, December 15, 2010. Accessed Online June 2012.

http://prairierivers.org/wp-content/uploads/2012/03/Lemly-2010-Environmental-Damage-fromCCW.pdf

AJA Technical Services (1997): Calendar Year 1996 Annual Groundwater Monitoring Report for the 

Chestnut Ridge Hydrogeologic Regime at the USDOE Y-12 Plant, Oak Ridge, Tennessee, AJA 

Technical Services, Inc., Y/SUB/97-KDS15V/2, February 1997. Accessed Online June 2012.

http://www.osti.gov/energycitations/servlets/purl/515511-PK2gIG/webviewable/515511.pdf

PR28. Coal Combustion Waste Landfill, Trans-Ash, Inc., Camden, Benton County, 

Tennessee

Type: Gravel Pit serving as an Offsite Monofill/Structural Fill.

Background and Description: Since 2002, Trans-Ash has disposed of coal combustion residual 

(CCR) at a former gravel-mined quarry (Bivens Quarry) in Camden, Tennessee. The former quarry is 

located in the Bivens Industrial Park (BIP). The CCRs in this Ash Landfill, Class II Disposal Facility 

consist of fly ash and bottom ash generated at the Tennessee Valley Authority (TVA) Johnsonville Fossil 

Plant (JOF).663 The 40-acre landfill (Phase 1) is currently active, and the Tennessee Department of 

Environment and Conservation (TDEC) recently approved an expansion of the landfill by additional 20-

acres (Phase 2), thereby creating an additional 2.2 million cubic yards of coal ash storage capacity for 

JOF.664 At BIP, the ash is formed into a large level pile, which may be used in the future as structural fill 

 

663 For additional information on the nexus between the Johnsonville Fossil Plant and the Bivens/Trans-Ash landfill, see the 

module on Johnsonville Fossil Plant, Technical Support Document Module # PTb53.

664 According to TVA (May 22, 2009), expanding the ashfill would result in the loss of about 3 acres of low-quality wetlands at 

BIP. TDEC and USACE require mitigation for the activities resulting in the loss of the wetlands. Therefore, a related proposed 

action is to create about 18 acres of wetlands on a 22-acre tract of land along White Oak Creek in Houston County, Tennessee.
I. CCR Proven Damage Cases December 2014

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for a light industry business park.

665 Due to previous gravel mining activities penetrating into 

groundwater, Trans-Ash was required to install a lining throughout the landfill (a 0.25” thick 

geosynthetic clay liner, GCL); however, Trans-Ash failed to do so, resulting in coal ash in direct contact 

with groundwater.666 Sixteen private wells are located within a one-mile radius of the landfill, and at 

least eight wells supply nearby residents with drinking water. Groundwater has been evaluated both 

onsite and offsite. The Groundwater Monitoring Plan for the landfill’s expansion (Phase 2) includes 23 

parameters monitored on a semi-annual basis.667

The entire Site lies within the outcrop zone of the Devonian-age Camden Formation. 668 The Camden 

Formation is underlain by the Harriman Formation, another chert that is difficult to distinguish from the 

Camden. Beneath the Harriman Formation, at a depth of about 150 feet, are limestones of the Ross and 

Decatur Formations. Groundwater in the area is generally under unconfined (water-table) conditions, 

although the low permeability of the chert formation results in some localized confined conditions. 

Overall groundwater flow is to the north-northeast, into the valley of Cypress Creek.669

Groundwater monitoring wells installed for the Phase 1 ashfill comprise four wells. Well MW-1 is 

screened at a depth of 90.4 feet in the Camden and represents the Phase 1 up-gradient monitoring well. 

Down-gradient Wells MW-2, MW-3, and MW-4 are screened within the shallow Camden Formation at 

depths ranging from 20.5 to 27.5 feet. March 2008 water level measurements for these wells and five 

exploratory borings in the proposed Phase 2 ashfill area indicate that the general direction of shallow 

groundwater movement is to the northeast toward the Cypress Creek floodplain. Shallow groundwater in 

the floodplain is expected to discharge into Cypress Creek or flow eastward, ultimately discharging into 

the Tennessee River.670

As a further check of leachate activity at BIP, TDEC requested the installation of three piezometers in 

the Phase 1 ashfill at BIP. The piezometers were installed in April 2009. A new monitoring well (MW-5) 

was installed at this time also, to replace MW-4, which is scheduled to be abandoned and buried by the 

Phase 2 ashfill.

Impact and Damage Claims: Groundwater: EIP (2010) indicates that levels of mercury exceeded 

the primary EPA Maximum Contaminant Level (MCL) in groundwater at two offsite residential wells 

(“Gibson wells”). In early 2009, in response to a complaint by a resident with two private water wells 

(‘Gibson wells’), TDEC tested the wells and found mercury ranging from 0.011 to 0.013 mg/L (x5.5 to 

6.5 higher than the federal MCL for drinking water). Additionally, arsenic (up to x27 the federal primary 

MCL), chromium, lead, and mercury exceeded their primary EPA MCLs in onsite groundwater. EIP 

(ibid) also claims that down-gradient monitoring wells have exhibited increasing trends in boron and 

sulfate concentrations over the last two years, indicating that groundwater quality is likely being 

influenced by landfill leachate. In April 2009, on-site groundwater samples showed up to 9.39 mg/L of 

boron and 739 mg/L of sulfate. Since March 8, 2007, boron concentrations in groundwater monitoring 

well (MW-4) steadily increased from <0.05 to 0.648 mg/L, and sulfate concentrations have steadily 

increased from 27.2 to 79.5 mg/L. TVA acknowledges that 10 percent of the water percolating through 

the landfill seeps through the liner and the ‘geologic buffer’ that lies beneath the CCRs.671

TVA admits that levels of CCR constituents (sulfate and boron) in groundwater are associated with coal 

ash leachate from the landfill,672 but argues that the mercury contamination is not from their landfill but 

is naturally occurring presumably because the CCR does not contain mercury as indicated from leaching 

results and the wells with exceedances are up-gradient of the landfill.673

EIP (ibid) rejects Trans-Ash‘s arguments for the following reasons: 
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 TVA argues that CCRs do not contain mercury, yet EPA’s 2004-2008 TRI data show that TVA‘s 

Johnsonville Fossil Plant disposed of > 1,220 pounds of mercury at an off-site land disposal facility. 

The only approved, off-site land disposal facility for Johnsonville Fossil Plant is the Trans-Ash, Inc. 

CCR landfill. 

 TVA presented some of the leaching results (indicating no detectable mercury) as ‘non-detectable’, 

but the detection limit (<0.01 mg/L) was five times higher than the mercury MCL (0.002 mg/L) for 

drinking water. 

 TVA has argued that CCR leachate from the landfill is representative of coal ash, yet piezometers 

were not drilled deep enough to sample groundwater conditions on top of the landfill liner and 

within the drainage blanket constructed of bottom ash. 

 

665 TVA (May 22, 2009). According to Triad (2008), “The existing facility includes approximately 38.3 acres 

permitted for the beneficial use of coal ash from the Tennessee Valley Authority’s Johnsonville Fossil Plant.”

666 Whereas the current design for Phase 2 specifies a liner with a GCL overlying re-compacted soil graded to 

maintain a minimum 3-foot separation from the seasonal high groundwater elevation, the design does not strictly

meet TDEC’s minimum requirements for a Class II disposal facility; therefore, waivers have been requested as 

follows: in lieu of the requirement for 30-mil FML (with a hydraulic conductivity of 1.0 x 10-13 cm/sec or less) 2-

feet 1.0x10-7compacted clay liner with geologic buffer of 5 feet of 1.0x10-6cm/sec soil, the waiver requests GCL 

with 3-feet 1.0x10-6cm/sec compacted soil. The waiver’s request rationale is that leachate modeling utilizing this 

design indicates the concentration of COCs would not exceed the applicable MCLs in the uppermost aquifer 

underlying the site (Camden Formation). In addition, the geosynthetic clay bottom liner of Phase 1 would be tied in 

and sealed to the Phase 2 FML (or equivalent) bottom liner prior to stacking in the Phase 2 area. Finally, an ash 

leachate collection system (LCS) would be constructed along the eastern margin of the ashfill to capture lateral 

drainage accumulating above the bottom liner of the expanded ashfill. The LCS would be discontinued following 

closure of Phase 2.

667 Triad (2008).

668 The quarry was previously mined for chert gravel. The Camden Formation (total thickness: 150 feet) represents 

one of the region‘s principal aquifers and generally consists of thinly bedded, sharply fragmented chert with 

occasional thin inter-bedded clay seams and pods. Groundwater is near the surface in wetland areas to the east and 

west, and groundwater is expected to flow into a series of lakes adjacent to the landfill. On-site monitoring wells 

indicate mounding of groundwater within the landfill.

669 Triad (2008).

670 Ibid.

671 According to TVA (May 22, 2009), “Because leachate was neither expected to significantly impact groundwater 

at BIP nor required by regulations, an LCS was not provided to capture ash leachate produced by infiltration of 

precipitation falling on the Phase 1 ashfill surface.”

672 According to TVA (May 22, 2009), “monitoring results to date have not shown exceedance of any TDEC 

maximum contaminant level (MCL). However, over the past two years, Well MW-4 has exhibited increasing trends 

in concentrations of sulfate and boron. These results indicate that groundwater quality in the Phase 1 ashfill vicinity 

is likely being influenced by leachate from the Phase 1 ashfill.”

673 According to TVA (May 22, 2009), mercury is below detection limits in the leachate samples; however, mercury 

is present above the MCL in both its suspended and dissolved forms in monitoring Well MW-5. Based upon the 

fluoride, sulfate, and total dissolved solids data from the piezometers and the monitoring well, the monitoring well 

appears to contain water of a character different from the leachate in the Phase 1 ashfill. Initial sampling results for 

MW-5 do not indicate that groundwater at that location has been affected by ash leachate, despite the presence of 

mercury. Unlike MW-4, the April 2009 boron data collected from MW-5 are consistent with background ranges for 

these parameters. Comparison of total (0.00748 mg/L) and dissolved (0.00326 mg/L) mercury data for MW-5 

suggests solids present in the sample contain mercury. Assuming no mercury was introduced during well 

installation, suspended solids and consequently dissolved solids in the sample from MW-5 are most likely derived 

from natural aquifer materials. The presence of detectable mercury in groundwater samples collected from upgradient MW-1 and down-gradient MW-3 in November 2002, prior to ash disposal at BIP, further supports the 

notion of natural (or pre-existing) sources of mercury in shallow groundwater at the site. JOF ash leachate is an 

unlikely source of mercury in both the private well and MW-5, since mercury has never been detected in any of the 

historical TCLP, SGLP or SPLP tests performed on JOF ash samples.
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 TVA argues that the Gibson well is cross-gradient or up-gradient to the landfill. However, on-site 

monitoring wells indicate mounding of groundwater within the landfill.

 TVA has argued that the mercury in the Gibson well is naturally occurring and not the result of 

contamination from the Trans-Ash, Inc. landfill. Yet, the highest mercury concentrations in 

groundwater were found in the Gibson wells (up to 0.013 mg/L, x6.5 the primary MCL, March 

2009) and in MW-5 (0.00748 mg/L, x3.7 the primary MCL, April 2009) located on the western 

perimeter of the landfill. TDEC‘s sampling data of 19 domestic water supply wells near the landfill 

show that the highest mercury concentration in any well other than the Gibson wells was 0.000087 

mg/L – or 126 times less than the lowest concentration reported in a Gibson well. Mercury was not 

detected at any concentration in 15 wells (79 percent). 

 Trans-Ash, Inc. placed coal ash in the quarry prior to determining statistical background 

concentrations for CCR pollutants, including mercury. As a result, Trans-Ash lacks the relevant 

baseline concentrations levels for CCR pollutants to compare to recent data.

Concerning EIP’s (ibid) claims of off-site damage to two private residential drinking water wells,

ASTSWMO claims674 that there is still a lack of conclusive evidence that the alleged damage is 

associated with the Trans-Ash landfill. ASTSWMO conjectures that the mercury exceedance in the 

Gibson well disregards the fact that the location of the well adjacent to a former gravel mine may play a 

role in the mercury level detected in the well. The Gibson well is bordered on two sides, and likely 

recharged, by two gravel mining ponds. Furthermore, EIP (ibid) did not properly address the issue of 

‘naturally occurring’ metals in groundwater in the area of the site. The geologic formation of the 

uppermost aquifer, the Camden chert, typically contains relatively large amounts of both iron and 

manganese oxides, and in an environment that has been significantly disturbed by gravel mining or well 

drilling, it is highly possible that metals will leach out of the geologic materials and be detected in the 

groundwater. 

ASTSWMO claims that it is misleading to conclude, as EIP (ibid) did, that since the other 19 private 

wells sampled in the area did not show elevated Mercury levels, mercury cannot be naturally occurring 

in groundwater at the site. The other 19 wells were not located adjacent to the old gravel mining area.675

As to The EIP’s (ibid) citing of data from the groundwater monitoring program at the site as evidence 

that waste from the landfill has impacted the groundwater, ASTSWMO claims that the EIP (ibid) fails to 

mention that the highest contaminant levels were detected prior to waste being placed in the landfill. For 

instance: EIP (ibid) claims that arsenic was detected at 27 times the MCL, but it fails to mention that this 

detection was from a sample taken prior to waste being placed at the landfill, and that arsenic has not 

been detected, at a detection level of 0.010 mg/L, in monitoring wells at the site for the last five years. 

EIP (ibid) mentions that the newly installed monitoring well, MW-5, showed, in the initial sampling, a 

level of mercury of 0.00748 mg/L. However, it fails to mention that in the two subsequent samplings, 

mercury levels were 0.000646 mg/L and ‘non-detect’, at a detection level of 0.000301 mg/L. The fact is 

that, in almost all cases, newly installed wells at the site have shown higher metal detections in the initial 

samplings and the levels have decreased over time. This may be due to disturbance of the hydrogeologic 

environment due to drilling and well installation. 

As to EIP’s (ibid) contention that the piezometers installed at the site to characterize the metals which 

might be leaching from the coal ash were “not drilled deep enough to sample groundwater conditions on 

top of the landfill liner and within the drainage blanket constructed of bottom ash”, ASTSWMO claims 

 

674 Comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0271. 

675 It is not clear what bearing these arguments have on the elevated level of mercury in the Gibson Wells. Unless 

inordinate levels and mobilization of mercury from the local sedimentary rock sequence is demonstrated, these 

arguments do not hold water.
I. CCR Proven Damage Cases December 2014

161

that the piezometers were drilled to a depth of approximately two feet above the top of the liner in an 

effort to avoid damaging the liner. Hence, any water sampled from a piezometer at this depth should be 

indicative of dissolved metals leaching from the coal ash above the liner. 

Finally, with regard to the alleged sulfate exceedances, the JOF’s consultant’s reports have repeatedly 

stated that although the sulfate is slightly elevated, it is present at levels similar to historical data and that 

they believe “the sulfate in MW-4 is naturally occurring and not indicative of groundwater 

contamination from the landfill”. They also cite literature which shows the sulfate levels are within a 

range of naturally occurring levels for the geologic formation.

Surface water: In addition to impacting drinking water wells with mercury, TDEC also found that TransAsh released coal ash into surface waters, allowed coal ash to run off the site with storm water, and 

disposed of ash in unlined areas, putting ash into direct contact with groundwater. TDEC recently 

allowed Trans-Ash, Inc. to expand its landfill to accommodate more coal ash from JOF. EIP (ibid) also 

claims that surface water and sediment have been impacted by the Trans-Ash landfill. The report 

indicates that TDEC data show that the highest sediment mercury concentration was from the sediment 

pond at the landfill. 

Resolution: TDEC’s Division of Water Pollution Control reportedly issued three Notices of Violation 

(NOV) to Trans-Ash for releasing CCR in an unlined portion of the landfill; releasing CCR into an 

unnamed tributary to Cypress Creek; and failure to report violations or take corrective action.676

Evaluation against Proven Damage Criteria677

Criteria Evaluation

Criterion 1: Documented exceedances of primary 

maximum contaminant levels (MCLs) or other healthbased standards measured in groundwater at 

sufficient distance from the waste management unit to 

indicate that hazardous constituents have migrated to 

the extent that they could cause human health 

concerns

 Offsite groundwater data exceeded the primary 

EPA MCL for mercury in two residential wells.

 Onsite groundwater data exceeded primary EPA 

MCLs for arsenic, chromium, lead, and mercury.

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage to 

human health or the environment (e.g., ecological 

damage)

 TDEC has issued an NOV to Trans-Ash for 

releasing CCR into an unnamed tributary to 

Cypress Creek. The EIP/EJ Report claims that 

surface water and sediment have been impacted 

by the Trans-Ash landfill; however no specific 

data to support these claims was provided.

Criterion 3: Where there has been an administrative 

ruling or court decision with an explicit finding of 

specific damage to human health or the environment

 In 2005, TDEC issued a Commissioners Order 

and assessed a $160,000 penalty against TransAsh for not installing a liner in the entire landfill 

and improperly installing a liner in portions of 

the landfill. 

 In 2009, in response to a complaint from a 

resident with two private wells (“Gibson well”) 

and subsequent TDEC sampling of the well, EPA 

 

676 TDEC (2005) in EIP (ibid). In 2005, TDEC assessed a $160,000 penalty against Trans-Ash, Inc when inspections 

revealed that Trans-Ash did not install a liner in the entire landfill, and improperly installed the GCL in portions of 

the landfill, leaving the GCL “saturated with water”.

677 ICF (2010).
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USWAG states that this case does not meet the criteria for a damage case.678 

The May 2009 Final Supplemental Environmental Assessment for the Phase II Bevins landfill (TVA, 

May 22, 2009) notes that TVA requested from TDEC waivers for Class II geological buffer and liner 

requirements as well as for cap requirements. However, TDEC insisted that the expanded landfill shall 

be designed with accordance to Tennessee’s Class II landfill requirements.679

ICF (2010) Rationale: Proven Damage. <Offsite groundwater exceeded the primary EPA MCL for 

mercury, and onsite groundwater exceeded the primary EPA MCL for arsenic, chromium, lead, and 

mercury. The EIP/EJ February 2010 Report claims that surface water and sediment have been impacted 

by the Trans-Ash landfill, however there is no scientific study that provides documented evidence of 

damage to human health or the environment. The TDEC issued a Commissioners Order to address 

landfill violations and EPA implemented an Emergency Removal Action to address contaminated offsite 

residential wells.>

References

EIP (2010): Out of Control: Mounting Damages from Coal Ash Waste Sites, Thirty-one New Damage 

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #29, The 

Environmental Integrity Project and EarthJustice. February 24, 2010. Accessed Online September 2013.

http://www.environmentalintegrity.org/news_reports/news_02_24_10.php

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases,

Appendix B: Assessment of February 2010 Alleged Damage Cases, Case #29. A report prepared for the 

EPA, October 2010.

TVA (May 22, 2009): Johnsonville Fossil Plant Ash Disposal Site Expansion, Benton, Houston, and 

Humphreys Counties, Tennessee (including links to the Draft Supplemental Environmental Assessment 

and to the Final Supplemental Environmental Assessment. JOF Ash Disposal Phase 2, Project Number: 

2007-75). Accessed Online May 2012.

http://www.tva.gov/environment/reports/johnsonville_ash/index.htm

Final Supplemental Environmental Assessment: 

http://www.tva.gov/environment/reports/johnsonville_ash/jof_ash_phase2_fsea-no_appendices.pdf

Triad (2008): Groundwater Monitoring Plan, Bivens Industrial Park Monofill Expansion, Camden, 

Tennessee, Appendix F, TriAD Project No. 01-TRA03-01, December 19, 2008. TriAD Environmental 

Consultants, Inc., prepared for: Trans-Ash, Inc. Accessed Online December 2012.

http://www.tva.gov/environment/reports/johnsonville_ash/appendix_f-jof_ash_phase2_fsea.pdf

implemented an Emergency Removal Action that 

involved the connection of the Gibson residence 

to the city water supply. 

 

678 Comment to the 2011 NODA (EPA-HQ-RCRA-2011-0392-0211): In the context of the cited contamination of 

off-site residential drinking water wells, because the allegations do not provide documented evidence of off‐site 

groundwater contamination, including in particular that the alleged contamination of a private drinking water well 

originated from the landfill is baseless.

679 Transcript of the Knoxville, TN CCR proposed rule public hearing, October 27, 2010, pages 338-340: 

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm.
I. CCR Proven Damage Cases December 2014

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PR29. Brandy Branch Reservoir, Marshall, Harrison County, Texas

Type: Cooling Reservoir Receiving Discharge from Surface Impoundments or from a Lignite Coal Pile 

Runoff.

Brief Description/Impact: The 1,242-acre Brandy Branch Reservoir, also known as Hallsville or 

Pirkey Lake, is an impoundment of Brandy Branch Creek. The reservoir was constructed in 1983 to 

serve as a cooling pond for Southwestern Electric Power Company’s (SWEPCO) Pirkey Power Plant,

680

and has been used for boating and fishing. The original claim was that the cooling reservoir received 

discharges from surface impoundments containing elevated levels of selenium, a claim that is challenged 

by industry (see below). From 1986 to 1989, the Texas Parks and Wildlife Department reported that 

average selenium concentrations in fish from the Brandy Branch Reservoir increased from 0.81 to 

2.29mg/kg.

681 In 1992, the Texas Department of State Health Services (DSHS; then known as TDH) 

issued an advisory682 restricting the consumption of fish from the reservoir based on selenium 

concentrations in the fish.683

Whereas no detailed biochemical or reproductive assessment has been done for Brandy Branch 

Reservoir, changes in fish populations (reduced standing crop) were documented in a scientific study; 

the State concluded that those changes were due to coal ash basin discharges. Populations of some 

predatory sport fish (e.g., largemouth bass) continued to be reduced in 2007.684

USWAG claims685 that because the Pirkey plant was constructed several years after the issue of elevated 

selenium levels at the Martin Creek and Welsh reservoirs elsewhere in Texas was first identified, 

SWEPCO took steps to prevent the potential discharge of water from CCR ponds into the Brandy 

Branch reservoir by designing the Pirkey plant with a closed-loop ash management system.686 Plant 

personnel determined that drainage from the Plant’s lignite storage stormwater runoff basin may have 

been the source of selenium loading to the reservoir. However, there was no information to link ash 

handling at Pirkey with the elevated selenium levels. To prevent the potential discharge of coal pile 

stormwater runoff into the reservoir, in the late 1990s, the Pirkey plant converted discharge from the 

lignite runoff base for use as make-up water for the flue gas desulfurization system. 

Previous Basis for Consideration:

687 Scientific: Observations of impacts on fish populations were 

confirmed by scientific study, based on which the State concluded that the impacts were attributable to 

the ash ponds. Administrative: the State issued a fish consumption advisory as a result of the 

contamination.

Other Considerations

 No observable impacts on fish population in this case. Brandy Branch was included in early 

studies because of fish kills reported at nearby Martin’s Creek Reservoir (EPA 2007, Case #22)

 Fish Consumption advisory issued; Advisory because of selenium concentrations in fish tissue 

rescinded because concentrations were not above newly, state- introduced, allowable selenium 

standard.

 ATSDR/TDH reevaluated risk in using new samples collected in 1996-1997 and found no risk.

Site Notes

 The State of Texas raised the allowable selenium concentration in fish tissue from 2 to 6 mg/g 

(dry weight) on September 29, 2003.

 Advisory lifted after 2003 fish sampling and analysis of human health risk.688 The highest mean 

selenium level in fish never exceeded 6 mg selenium/kg of fish tissue, the newly established 
I. CCR Proven Damage Cases December 2014

164

TDH health-based assessment comparison (HAC) for fish.689 However, fish-toxicity experts 

(Lemly, ibid, and references therein) have established 4 mg selenium/kg of fish tissue as a toxic 

threshold. 

 There is an inexplicable discrepancy between the selenium concentration levels reported by 

Texas Parks and Wildlife and Lemly (ibid) pertaining to 1986-1989.

 

680 SWEPCO is a subsidiary of American Electric Power (AEP). The Plant, commissioned in 1985, has a Nameplate 

Capacity of 721 MW. For information on Pirkey’s CCR management system, see EPA (2009).

681 Lemly (2010) cites different fish tissue selenium concentration values: <Texas Parks and Wildlife determined 

that during 1986-1989, average fish tissue selenium levels increased from 3.24 to 11.6 ppm dw (dry-weight). During 

1986-2003, Texas Department of Health reviewed all data from fish monitoring over an 18-year period (1986-2003) 

and determined that the average concentration was 8.92 ppm dw. The levels found (8-11 ppm) are within the range 

associated with impaired blood chemistry and health indicators, teratogenic deformities, and reproductive failure in 

the same species naturally exposed to coal ash discharges at other locations.> The discrepancy may reflect a 

different reporting methodology, i.e., Texas Parks and Wildlife Department (TPWD) reporting total tissue 

concentration levels, whereas Lemly (ibid) reporting dry-weight concentration levels. On the status of the Federal 

selenium-in-fish regulation, see comment to the proposed rule’s docket: EPA-HQ-RCRA-2009-0640-2930, 

Attachment.

682 ATSDR (1998). 

683 Texas Bureau of Health (1992). Lemly (ibid) estimates the monetized value of damage at over $108 million.

This damage case was brought first to EPA’s attention in a letter from the Hoosier Environmental Council (HEC) to 

the RCRA Docket Information Center regarding comments on the May 2000 Regulatory Determination, September 

19, 2000.

684 Lemly, ibid.

685 In an August 23, 2005 letter from J. Roewer, USWAG, to R. Kinch, EPA/OSW, USWAG documents possible 

misconceptions about the source of Pirkey’s selenium loading discharge to the cooling lake. Based on the history of 

this case, USWAG requests that EPA remove the Brandy Branch Case from the list of damage cases: USWAG

(2008). 

686 This claim seems to be bolstered by Amec’s (2011) citation of 1983/84 hydrologic and hydraulic design capacity 

reports of the bottom ash ponds and of the Surge and Auxiliary Surge Ponds of the Pirkey Plant. According to these 

documents the wastewater ponds, working as a hydraulically connected system, were provided with capacity above 

the normal operating level “to capture and hold the 10 year - 24 hour runoff from the basin and pond drainage

areas.” The report further notes that runoff from rainfall in excess of the 10 year - 24 hour storm will be discharged 

from the Secondary Ash Pond through a spillway. The spillway design capacity was noted to be for the 100-year 24-

hour event; additionally, pond freeboard was provided “above the maximum water level” that would result from that 

100-year 24-hour event. The Auxiliary Surge Pond was designed to be used only in emergency conditions. The old 

reports indicate that the Surge Pond and Auxiliary Surge Pond are sized to detain the 10-year 24-hour and 10-year 

12-hour rainfall events, respectively. However, clarifying calculations in support of the cited information were not 

provided to Amec during preparation of their draft report, so the effectiveness of the intended self-contained design 

cannot be evaluated. 

In addition, the Texas Commission on Environmental Quality has issued Texas Pollutant Discharge 

Elimination System (TPDES) Permit No. 02496 to AEP-SWEPCO. This TPDES Permit authorizes AEP-SWEPCO 

to discharge clarified and treated wastewater from the coal combustion processes at Pirkey to unnamed tributaries of 

Hatley Creek, which flow to Hatley Creek and on to the Sabine River above the Toledo Bend Reservoir, 

circumventing the Brandy Branch Reservoir. However, the effective date of the permit is May 14, 2007 and it is not 

known to what extent similar requirements were included in earlier TPDES permits, which would have supported

USWAG’s arguments.

687 EPA (2007).

688 TCEQ (2004): “Depending on body weight (10-30 kg), children could consume approximately one to five (four 

ounce) meals of Brandy Branch fish per week before exceeding the MRL. Adults (70 kg) consuming five to six 

(eight ounce) meals of Brandy Branch fish per week would not be expected to exceed the MRL. Approximately 

three times these amounts would be required to exceed the lowest levels reasonably expected to result in signs and 

symptoms of toxicity, therefore, ingestion of fish at these amounts pose no apparent public health hazard”.

689 Comment EPA-HQ-RCRA-2009-0640-6851.
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 The State removed Brandy Branch from the State’s Clean Water Act § 303(d) list of impaired 

waters. 

ICF (2010) Rationale: Not a Damage Case. <No indicator of damage due to elevated selenium in 

surface water and fish tissue. There is no study finding specific damage to fish in the Brandy Branch 

Reservoir due to elevated selenium.>690

Postscript: ICF’s (2010) rationale is rejected because the fish advisory had been in force for about 12 

years, and considering that the newly established allowable selenium concentration in fish tissue (6 mg 

selenium/kg) exceeds the threshold value (4 mg selenium/kg) recommended by national fish-toxicity 

experts.691 Notwithstanding whether industry’s claims about a closed loop coal ash management system 

(i.e., no coal ash has been ever delivered to the Plant’s cooling ponds via the CCR impoundments’ 

outfall system) are substantiated, coal pile runoff is considered a Uniquely Associated Waste and as 

such, from a regulatory perspective is undistinguishable from CCR runoff as a source term for the 

selenium impact.692 

References

EPA (2007): Coal Combustion Waste Damage Case Assessments, Case #20, docket ID EPA-HQRCRA-2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #7. ICF, 10/2010. 

EPA (2004): Draft Aquatic Life Water Quality Criteria for selenium – 2004. USEPA Office of Water, 

EPA-822-D-04-001, November 2004. Accessed Online July 2012.

http://water.epa.gov/scitech/swguidance/standards/upload/2008_10_27_criteria_seleniums_maintext.pdf

Texas Bureau of Health (1992): Fish Advisory: Brandy Branch Reservoir. May, 1992. Accessed Online 

March 2012.

http://www.atsdr.cdc.gov/hac/pha/pha.asp?docid=114&pg=0

 

690 A report submitted by SAIC to Dennis Ruddy, EPA/OSWER on April 20, 2000 (Rationale and Conclusions Regarding 

Commenter-Identified Fossil Fuel Combustion Waste Damage Cases) states: <This case is similar to the Welsh Reservoir Case 

discussed above. The TWPD report on this case, however, states that “at Brandy Branch, the ash handling system is closed, with 

input from the system limited to a small number of permitted outfalls”. Conclusion: Based on the uncertainty expressed in the 

TPWD report about the source of selenium contamination in this case, there is insufficient information to conclude that this case 

is a damage case.> 

691 Note, however, that EPA (2004) proposes a higher threshold: “The draft freshwater chronic criterion is expressed as a 

concentration in whole-body fish tissue of 7.91μg/g, dry weight, and says if fish tissue samples exceed 5.85μg/g during summer 

or fall, fish should be monitored during the winter to determine if selenium exceeds 7.91μg/g.”

692 See (i) §261.4(b) in the December 2014 final CCR rule; (ii) a January 13, 1981 letter from Gary N. Dietrich, EPA, to Paul 

Elmer, USWAG, addressing ‘associated waste’, available in the docket to the final rule; (iii) the 1999 Report to Congress on 

wastes from the combustion of fossil fuels (where coal pile run-off is considered ‘low-volume waste’: 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/volume_2.pdf), and (iv) the May 22, 2000 Regulatory determination on 

wastes from the combustion of fossil fuels, where the term Uniquely Associated Waste was first introduced (Federal Register/Vol. 

65, No. 99/Monday, May 22, 2000/Rules and Regulations). 
I. CCR Proven Damage Cases December 2014

166

TCEQ (2004): Assessing the Fish Consumption Use, Water Quality in Brandy Branch Reservoir, March 

2004. Accessed Online March 2012.

http://www.tceq.texas.gov/assets/public/implementation/water/tmdl/15brandybranch/15-

brandybranch.pdf

TCEQ (2011): Texas Commission on Environmental Quality Assessment of Brandy Branch Reservoir, 

May 18, 2011. Accessed Online March 2012.

http://www.tceq.state.tx.us/implementation/water/tmdl/15-brandybranchreservoir.html

Ecological Assessment of Selenium in the Aquatic Environment, Appendix A. Selected Case Studies of 

Ecosystem Contamination by Selenium, Terry F. Young et al., Edited by Peter M. Chapman et al., CRC 

Press 2010, pages 257–292.

Lemly (2010): A White Paper on Environmental Damage from Coal Combustion Waste: The Cost of 

Poisoned Fish and Wildlife, A. Dennis Lemly, EPA Docket Comment No. EPA–HQ–RCRA–2009–

0640-6313, Appendix I, December 15, 2010. Accessed Online June 2012. 

http://prairierivers.org/wp-content/uploads/2012/03/Lemly-2010-Environmental-Damage-fromCCW.pdf 

ATSDR (1998): Health Consultation Brandy Branch Reservoir Marshall, Harrison County, Texas, 

September 30, 1998, Agency for Toxic Substances and Disease Registry. Accessed Online June 2012. 

http://www.atsdr.cdc.gov/HAC/pha/PHA.asp?docid=114&pg=0

USWAG (2008): USWAG’s comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0432, 

Appendix C. February 11, 2008. Accessed Online June 2012.

http://www.regulations.gov/#!searchResults;rpp=25;po=0;s=EPA-HQ-RCRA-2006-0796-0432

Amec (2011): Report on Dam Safety Assessment of Coal Combustion Surface Impoundments, American 

Electric Power (AEP) and Southwest Electric Power (SWEPCO). H.W. Pirkey Power Plant, Hallsville, 

TX. Amec Project No. 3-2106-0183.0003. Amec Earth & Environmental, Inc., Louisville, KY, June 

2011. Accessed Online September 2013.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/aep-pirkey-final.pdf

EPA (2009): Response to a CERCLA Information Collection Request, Southwestern Electric Power 

Company (SWEPC) Pirkey Power Station.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm#S

PR30. Martin Lake Reservoir, Texas Utilities Electric, Tatum, Rusk and Manola 

Counties, Texas

Type: Cooling Reservoir Receiving Unpermitted Stormwater Discharge from Surface Impoundments.

Brief Description: The 5,020 acre, unlined693 Martin Creek reservoir was constructed in 1974 as a 

cooling lake for the Tatum Texas Utilities Generating Company’s power plant.694 Unpermitted 

 

693 EPRI (2010).

694 According to Sanzillo (2011) and Luminant (No date), the Martin Lake Plant is owned by Luminant/Texas Competitive 

Electric Holdings (TCEH). Its three generation units of 793 MW nameplate capacity each (they came online in 1977, 1978, and
I. CCR Proven Damage Cases December 2014

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1979) have a combined generation capacity of 2,250 MW. Lately, the plant has been burning a combination of local (Texas) 

lignite and Powder River Basin coal from Wyoming.
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discharges from two fly ash settling ponds between September 1978 and May 1979 resulted in elevated 

levels of selenium in the lake’s water [average of 2.6μg/L (range = 1 to 34μg/L)] and fish (in 1979, 

selenium concentrations in bass ranged from 7.1 to 8.3 mg/kg.) Within two years, the biomass of 

planktivorous fish declined by over 90 percent, and a monitoring study conducted by the Texas Parks 

and Wildlife Department found that major reproductive failure was occurring in other species (e.g., 

largemouth bass, bluegill).695 In 1978 and 1979, during the start-up phase of the power plant, the Texas 

Parks and Wildlife Department (TPWD) reported incidents of fish kills, which it attributed to elevated 

levels of selenium. Dead fish had elevated selenium relative to background fish and impacts (enlarged 

kidneys, hemorrhaging) consistent with selenium overexposure. In response, the TDH issued a fish 

consumption advisory in 1992.696 

According to Young et al.,697 numerous studies in Martin Creek Reservoir have documented 

histopathologic abnormalities in fish tissues following the discharge of power plant effluent into the 

system. Liver, kidney, heart, and gonadal abnormalities were the most commonly documented 

aberrations. For some species (e.g., redear sunfish) overall health was compromised (reduced condition 

factor) for more than 8 years after discharge ceased. Population decline was documented in several fish 

species, drastically altering the aquatic community in Martin Creek Reservoir. Planktivorous and 

carnivorous species were most affected, with gizzard shad populations experiencing some of the most 

drastic declines, from 890 individuals/ha in 1977 to 182 individuals/ha in 1979. Recovery of this species 

was slow, reaching only 264 individuals/ha in 1981.

In 1996 and 1997, TDH collected 34 fish698 for a re-evaluation of the fish consumption advisory. The 

concentration of selenium in the fish ranged from 0.7 to 4.0 mg/kg with an overall average concentration 

of 2.3 mg/kg. Although selenium levels in fish from Martin Creek Lake was still above reported national 

averages (0.1 to 1.5 mg/kg), the concentration of selenium in fish from Martin Creek Lake has been 

decreasing. However, elevated tissue levels of selenium and reproductive impairment of fish (ovarian 

damage) were still evident over seven years following the discharges.699

About seven to eight years after the discharge episode, high selenium concentrations in red-winged 

blackbird (Agelaius phoeniceus) eggs (mean value of 11.1 mg/kg) were documented and associated with 

greater than 50 percent depression in egg hatchability. Two blackbird foods – grass-hoppers and 

mayflies – averaged 1.1 and 15 mg selenium/kg, respectively.700 Barn swallow (Hirundo rustica) eggs 

contained on average 3.3 mg selenium/kg, and showed normal hatchability compared to local reference 

population.701

Resolution: Following the fish mortality incidents, TXU worked closely with the Texas Natural 

Resource Conservation Commission (TNRCC, the predecessor of the Texas Commission on 

Environmental Quality, TCEQ) to modify the design and operating procedures of the new plant. These 

included increasing freeboard capacity of its CCR management ponds, lining ponds with synthetic 

membranes, installing leak detection systems, monitoring ground- and surface water, and biomonitoring 

of fish. These modifications were incorporated into the facility’s operating permit.702

Previous Basis for Consideration: Scientific: Evidence of adverse effects on wildlife--impacts on 

fish populations were observed, and the State concluded that the impacts were attributable to the ash 

settling ponds. Administrative: The State has issued a fish consumption advisory as a result of the 

contamination.

Other Considerations

 ATSDR concluded, in a 1998 study, that the levels of selenium in Martin Creek Reservoir have 

decreased significantly during the period of investigation (1979 - 1998). Based on these findings, 
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ATSDR recommended703 that the fish consumption advisory issued for Martin Creek Lake in 

1992 should be re-evaluated based on the then current recommended limitations on long-term 

fish consumption. 

 The State of Texas raised the allowable selenium concentration in fish tissue from 2 to 6 ppm 

(dry weight) in October 2004 and lifted the Advisory;704 and Texas removed the reservoir from 

the State’s Clean Water Act § 303(d) list of impaired waters Clean Water Act § 303(d) list of 

impaired waters.

ICF (2010) Rationale: Proven Damage Case. <No indicator of human health damage due to elevated 

selenium in surface water and fish tissue. Reported slow fish die-off demonstrated in three year study 

reducing total biomass, population, and diversity.>

References

EPA (2007): Coal Combustion Waste Damage Case Assessments, Case #22, docket ID EPA-HQRCRA-2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #22. ICF, 10/2010.

Young et al., (2010): Ecological Assessment of Selenium in the Aquatic Environment; Hyco Lake, North 

Carolina. Appendix A. Selected Case Studies of Ecosystem Contamination by Selenium, Terry F. Young 

et al., Edited by Peter M. Chapman et al., CRC Press, 2010, Pages 264–265. Accessed Online June 2012.

http://wwwrcamnl.wr.usgs.gov/Selenium/Library_articles/chapman_etal_2010_appendixA.pdf

TCEQ (2004): Texas Commission on Environmental Quality Assessment of Martin Creek Reservoir, 

March 2004. Accessed Online June 2012.

http://www.tceq.state.tx.us/assets/public/implementation/water/tmdl/12martin/12-martin.pdf

Lemly (2010): A White Paper on Environmental Damage from Coal Combustion Waste: The Cost of 

Poisoned Fish and Wildlife, A. Dennis Lemly, EPA Docket Comment EPA–HQ–RCRA–2009–0640-

6313, Appendix I, December 15, 2010. Accessed Online June 2012.

http://prairierivers.org/wp-content/uploads/2012/03/Lemly-2010-Environmental-Damage-fromCCW.pdf 

 

695 Garrett and Inman (1984).

696 TCEQ (2004).

697 Young et al., (2010) and references therein.

698 Seventeen bass, 10 channel catfish, 4 black crappie, 1 white crappie, and 2 flathead catfish.

699 Sorensen (1986), in Lemly (1999). Lemly (2010) estimated the monetized value of damage at over $229 million. 

On the status of the Federal selenium-in-fish regulation, see comment to the proposed rule’s docket: EPA-HQ-RCRA-2009-0640-

2930, Attachment.

700 Anonymous (1998).

701 Skorupa (1998) and Anonymous (1998).

702 In an August 23, 2005 letter from J. Roewer, USWAG, to R. Kinch, EPA/OSW, USWAG requested that EPA identify the 

Martin Creek Reservoir as a site where the previously identified “proven damage” has been resolved to the satisfaction of the 

State. USWAG’s comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0432, Appendix C.

703 ATSDR concluded that estimated exposures to selenium from eating fish from Martin Creek do not exceed minimum risk 

levels for adverse health effects for children consuming one to two meals per week (4 ounces each) or for adults consuming 

approximately two meals per week (8 ounces each). Approximately three times these amounts would be required to exceed the 

lowest levels reasonably expected to result in signs and symptoms of toxicity, therefore, ingestion of fish from Martin Creek 

Reservoir poses no apparent public health hazard.

704 TCEQ (2004).
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Lemly (1999): Selenium Impacts on Fish: An lnsidious Time Bomb. A. Dennis Lemly, Human and 

Ecological Risk Assessment: Vol. 5, No. 6, pp. 1139–1151 (l999). Accessed Online June 2012.

http://www.trout.forprod.vt.edu/fishpubs/lemly1999_04.pdf

ATSDR (1998): Health Consultation Martin Creek Lake Henderson, Rusk and Panola counties, Texas, 

September 17, 1998, Agency for Toxic Substances and Disease Registry. Accessed Online June 2012. 

http://www.atsdr.cdc.gov/HAC/pha/PHA.asp?docid=117&pg=0

Anonymous (1998): Guideline for Interpretation of the Biological Effects of Selected Constituents in 

Biota, Water, and Sediment: Selenium. United States Department of the Interior, National Irrigation 

Water Quality Program Information report No. 3, November 1998. Accessed Online June 2012.

http://www.usbr.gov/niwqp/guidelines/pdf/Selenium.pdf

EPRI (2010): Evaluation of Coal Combustion Product Damage Cases. Volume 2: Case Summaries. 

1020554, Final Report, September 2010. Accessed Online June 2012.

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%2

0Product%20Damage%20Cases

Skorupa (1998): Selenium poisoning in fish and wildlife in nature: lessons from twelve real-world 

examples. Joseph P. Skorupa, USFWS, Sacramento, California. In: Environmental Chemistry of 

Selenium, William T. Frankenberger Jr. and Richard A. Ergberg, Edits, Mercel Dekker, Inc., 1998.

Accessed Online June 2012.

http://wwwrcamnl.wr.usgs.gov/Selenium/Library_articles/SePoisoning.pdf

Sanzillo (2011): The Case to Retire Big Brown, Monticello and Martin Lake Coal Plants: Three 

Financially Mismanaged, Unprofitable, Outmoded and Worthless Coal Plants in North Texas, Tom 

Sanzillo, TR Rose Associates, New York, New York, a Report Prepared for Sierra Club, March 17, 

2011. Accessed Online January 2013.

http://texasgreenreport.files.wordpress.com/2011/03/the-case-to-retire-big-brown-monticello-andmartin-lake-coal-plants.pdf

Luminant (No date): Martin Lake Power Plant and Mines. Accessed Online August 2014.

http://www.luminant.com/plants/pdf/martinlake_facts.pdf

PR31. Southwestern Electric Power Company Welsh Reservoir, Mount Pleasant, Titus 

County, Texas

Type: Cooling Reservoir receiving selenium effluents from surface impoundments.

Brief Description/Impact: The Welsh reservoir is a 1,365-acre lake (with storage capacity of 23,590

acre-feet) constructed in 1976 and operated by Southwestern Electric Power Company (SWEPCO) to 

serve as a cooling reservoir for the Welsh Power Plant.705 The reservoir has also become a popular 

 

705 The American Electric Power – owned Welsh Power Plant, Pittsburg, Texas, comprises three generation units, 558 MW each, 

that came on line in 1977, 1980, and 1987. AEP announced in June 2011 that they were slating to retire Unit 2 of the Welsh

Plant, generating 528 MW of power, by December 31, 2014; whereas Units 1 and 3 (1,056 MW) would continue to operate with 

scrubber retrofits (AEP, 2011)
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recreational area for fishing, boating and scuba diving. Between 1976 and 2000,706 the reservoir

received discharges from ash ponds apparently in compliance with the Plant’s NPDES permit.707 The 

Texas Parks and Wildlife Department (TPWD) monitoring documented elevated levels of selenium and 

other metals in fish. TPWD reported levels of selenium in Welsh Reservoir fish ranging from 2.28 to 

4.41 mg/kg from 1986-1989. In 1992, TPWD issued a Fish Consumption advisory because of excessive 

selenium concentrations in fish tissue.

In 1998, the Texas Department of Health (TDH)708 re-evaluated the fish consumption advisory. The 

concentration of selenium in the analyzed fish ranged from 1.2 to 4.5 mg/kg with an overall average 

concentration of 2.7 mg/kg, indicating that selenium levels in fish from Welsh Reservoir continued to be 

above reported national averages (0.1 to 1.5 mg/kg). TDH concluded that there is no clear indication of 

an overall change in selenium concentrations in fish tissue over the 12 years of investigation; however, 

there is a nine year period (1989-1998), in which there are no data to represent an overall increase or 

decrease in average concentrations. The maximum average concentration of 4.4 mg/kg selenium in fish 

tissue occurred in 1987. Total standing fish crop was reduced by up to 75 percent for some species.

Several fish kills were reported by TPWD from 1989-1999, and were attributed to elevated summer 

water temperatures associated with the heated discharge from Welsh Power Plant.709 Therefore, it is 

likely that coal ash pollution, in combination with elevated water temperature, caused the kills. Fish 

populations were still depressed in 2007, despite changes in angler harvest regulations and artificial 

stocking to enhance standing crop and diversity of species.710

Resolution: In 2000, in accord with the Texas Natural Resource Conservation Commission, the 

procedure was modified, to eliminate the discharge of ash-pond decant water to the cooling reservoir. A 

consumption advisory for fish in the cooling pond issued in 1992 stated that selenium concentrations in 

fish tissue exceeded 2 mg/kg which was used then as a standard. AEP claims that for all samples 

collected over 17 years, the mean selenium fish tissue concentration was 3.6 mg/kg with only one 

sample exceeding the newly introduced 6 mg/kg Tissue Residue Concentration standard.711 

Previous Basis for Consideration: Scientific: selenium accumulation in fish may be attributable to 

the ash settling ponds. Administrative: The State has issued a fish consumption advisory as a result of 

contamination.

Site Notes

 This case was addressed in EPA (2007).

 The State of Texas raised the allowable selenium concentration in fish tissue from 2 to 6 mg/kg (dry 

weight) on September 29, 2003 and rescinded the old value. The fish consumption advisory was 

lifted on October 14, 2003. 

 As a result of TDH’s study, the State removed the reservoir from the State’s Clean Water Act § 

303(d) list of impaired waters.712

ICF (2010) Rationale: Not a Damage Case. <No indicator of damage due to elevated selenium in 

surface water and fish tissue.>

Postscript: Considering that the Welsh reservoir still has documented ecological (fish population) 

damage, and the fact that the documented Tissue Residue Concentration selenium levels in fish have 

exceeded the recommended allowable levels (4 mg/kg),

713 this site is a proven damage case.

References
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EPA (2007): Coal Combustion Waste Damage Case Assessments, Case #21, docket ID EPA-HQRCRA-2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #21. ICF, 10/2010.

Hamilton (2003): Commentary: Review of residue-based selenium toxicity thresholds for freshwater 

fish. Hamilton, S. J., Ecotoxicology and Environmental Safety 56 (2003) 201–210, 2003. Accessed 

Online July 2012. http://www.seleniumtaskforce.org/images/Hamilton_2003.pdf

Lemly (1993): Guidelines for evaluating selenium data from aquatic monitoring and assessment studies. 

Lemly, A.D., Environ. Monit. Assess. 28, 83–100, 1993. Accessed Online July 2012. 

http://www.trout.forprod.vt.edu/fishpubs/lemly1993_01.pdf 

Lemly (2010): A White Paper on Environmental Damage from Coal Combustion Waste: The Cost of 

Poisoned Fish and Wildlife, A. Dennis Lemly, EPA Docket comment EPA–HQ–RCRA–2009–0640-

6313, Appendix I, December 15, 2010. Accessed Online June 2012.

http://prairierivers.org/wp-content/uploads/2012/03/Lemly-2010-Environmental-Damage-fromCCW.pdf 

TCEQ (2011): Texas Commission on Environmental Quality Assessment of Welsh Reservoir, last 

modified June 2, 2011. Accessed Online June 2012. 

http://www.tceq.state.tx.us/implementation/water/tmdl/14-welshreservoir.html 

ATSDR (1998): Health Consultation Welsh Reservoir Mount Pleasant, Titus County, TX, September 30, 

1998, Agency for Toxic Substances and Disease Registry. Accessed Online June 2012.

http://www.atsdr.cdc.gov/HAC/pha/PHA.asp?docid=145&pg=0

 

706 American Electric Power Comment to the docket: EPA-HQ-RCRA-2009-0640-6851; and USWAG comment to 

the 2007 NODA docket, ibid. In their 2007 comment, USWAG states that TPWD noted that (i) the Welsh Plant 

burned bituminous rather than lignite coal, which has a lower content of selenium; (ii) a 1982 sediment sampling 

conducted by the TPWD under the Plant’s permit to determine the effects of discharges from the ash ponds on the 

reservoir showed low levels of selenium – 1 mg/kg or less at all sampling points. Based on this evidence, USWAG

implies that the Power Plant’s ash impoundments were not the source of the elevated selenium levels in the Welsh 

reservoir.

707 USWAG’s comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0432, Appendix C.

708 Twenty fish were collected: 12 largemouth bass, six channel catfish, one flathead catfish, and one common carp.

709 Metals and other pollutants in coal ash effluent are known to reduce lethal temperatures for fish and also to 

modify their behavior in a way that would make them less likely to avoid lethal temperature zones in a heated 

reservoir.

710 D. Lemly, Comment to the docket: EPA-HQ-RCRA-2009-0640-6313, Appendix I. Lemly (2010) estimated the 

monetized damage value of the Welsh Lake fish consumption advisory at over $161 million.

711 American Electric Power Comment to the docket, ibid.

712 Based on the State’s actions, USWAG requests that EPA either remove Welsh Reservoir from the list of CCR 

damage cases, or reclassify the reservoir as a site where the previously identified damage has been resolved to the 

satisfaction of the State. EPA-HQ-RCRA-2006-0796-0432, Appendix C.

713 Both Lemly (1993) and Hamilton (2003) agree that studies continue to support the dietary selenium threshold of 

3-μg/g and the whole-body selenium threshold of 4-μg/g for fish. However, EPA (2004) proposed a final chronic 

value for selenium of 7.91-μg/g dry weight whole body tissue concentration. On the status of the Federal seleniumin-fish regulation, see comment to the proposed rule’s docket: EPA-HQ-RCRA-2009-0640-2930, Attachment.
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EPA (2004): Draft aquatic life water quality criteria for selenium – 2004. EPA-822-D-04-001. U.S. 

Environmental Protection Agency, Office of Water (4304), Washington, DC. 2004. Accessed Online 

June 2012.

http://water.epa.gov/scitech/swguidance/standards/criteria/aqlife/pollutants/selenium/fs.cfm

PR32. Clinch River Plant, American Electric Power – Appalachian Power Company, 

Cleveland, Russell County, Virginia

Type: Surface Impoundments and landfill.

Background and Description: The Clinch River plant714 has two ash ponds and a fly ash landfill. The 

two unlined ash ponds were commissioned in 1954-55, 715 with capacities of 1,240 and 1,332 acre-feet, 

respectively. The 45 acre Pond Area 1, receiving both fly- and bottom-ash, and the fly ash landfill are 

currently active.716 Bottom Ash Pond Area 2 was closed in 1998.717 The plant lies in a rural area, on the 

Clinch River, to which effluent from the ponds is discharged.718

The Clinch River Plant is in the Appalachian Mountains section of the Valley and Ridge physiographic 

province. Bedrock consists of shale, sandstone, and minor dolomite of the Cambrian-age Rome 

Formation. The area is characterized by northeast to southwest trending folds. The course of the Clinch 

River is within the Rome Formation.719 The Clinch River watershed has an assemblage of freshwater 

mussel species (unioniods) that is among the most diverse in the world.720

Impact and Damage Claims: EIP (2010a) indicates that a dike failure in Pond Area 1 in June 1967721

released about 400 acre-feet (130 million gallon) of ash slurry into Dump’s Creek (which joins Clinch 

River a half mile downstream) in under an hour. The spill equaled approximately 40 percent of the daily 

 

714 The Clinch River Plant, located close to southwestern Virginia’s coal mines, was commissioned in 1958 

(Generation Units 1 and 2) and 1961 (Unit 3). According to AEP (2011), the Clinch River Plant is slated for the 

following operational changes: Unit 3 (235 MW) would be retired by Dec. 31, 2014; and Units 1 and 2 (470 MW 

total) would be refueled with natural gas with a capacity of 422 MW by Dec. 31, 2014. 

715 Dewberry and Davis (2011), Appendix B, Documents 18 and 19, and Section 4.1.1. Both ponds have since 

undergone extensive modifications.

716 Pond Area 1 is a multi-cell pond composed of Pond 1A and Pond 1B (Dewberry and Davis, ibid). This Area had 

a history of seepage and boils at the toe area on the downstream face since before 1978. Late in 1990, a cement 

bentonite-fly ash cutoff wall was constructed within the perimeter dike of Ash Pond 1 (Appendix A, Document 7). 

The cutoff wall served to block potential seepage paths in the dike to improve downstream stability. Ash Pond 1 is 

periodically dredged, residuals allowed to dry, and the CCR is trucked off-site to an approved landfill or for other 

beneficial use

717 According to Dewberry and Davis (ibid), the Owner was considering a closure permit for Ash Pond 2 and that it 

would be capped and would function as a landfill (Appendix A, Document 6). The Owner submitted the closure plan 

for Ash Pond 2 for regulatory approval in 2009 but has since retracted the plan.

718 The plant has a National Pollutant Discharge Elimination System (NPDES) Permit No. VA0001015.

719 Dewberry and Davis (ibid), Appendix A, Document 4.

720 Virginia Department of Game and Inland Fisheries (2010). According to references cited in EIP (2010a), 

sampling performed at selected sites within the Clinch River between 1979 and 1994 found a total of 39 mussel 

species, six of which were endangered and 14 of which were endemic to the Cumberland Plateau. In the watershed 

at least four fish and 18 freshwater mussel (Unionoidea) species are listed as either federally endangered, threatened, 

or of special concern.

721 A 50 to 80-feet section of a dike surrounding Ash Pond 1A/1B was breached. According to repeated citations in 

Dewberry and Davis (ibid), it was Ash Pond 2 that gave way.
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flow for Clinch River, blocked flow for several minutes, and raised the water level by several meters, 

forcing some waste nearly a half mile upstream. EIP (2010a) notes that studies of the spill determined 

high pH as the major source of toxicity in the released slurry.722 It also noted that the spill killed 

approximately 162,000 fish for nearly 66 miles down the Clinch River in Virginia and another 55,000 

over 24 miles into Tennessee. Studies also noted that benthic macro-invertebrates were completely 

eliminated for nearly four miles below the spill, while snails and mussels (for which the river is well 

known and contains multiple species listed as endangered, threatened or of special concern) were 

eliminated for nearly 11 miles downstream of the plant.723 A study nearly five years later noted that 

mollusk communities still had significantly reduced numbers for about 18 miles downstream, though a 

smaller, acidic spill in 1970 could also have had effect on population recovery. 

In addition to the two (1967 and 1970) acutely toxic spills discussed above, long-term, high concentrations 

of copper in the effluent discharges from the Power Plant have been associated with biological impairment.

Studies in the 1980s also noted that populations of biota nearer to the discharge point remained impaired. 

They noted that besides the toxic spill, metal concentrations in the effluent of copper and aluminum 

exceeded EPA's Water Quality Criteria (WQC),724 though copper levels were reduced following process 

modifications introduced in the late 1980s and early 1990s. More recent studies725 found that the current 

damages to biota were likely caused by effluent discharges and were less prominent outside the area 

immediately near the discharge point. 

According to EIP (2010a), following the reductions in effluent copper, most benthic macro-invertebrate 

community parameters (e.g., richness and diversity) recovered at affected sites, from levels that were 

typically 70 percent of reference levels to levels that ranged from 80 percent to more than 100 percent of 

reference levels. However, bivalves remained impaired downstream, with transplanted mollusks at 

effluent-affected sites having a typical survivorship of 40 percent and growth 20 percent that of reference 

sites. Concentrations of aluminum, which continued to be measured at almost x10 the water quality 

criteria for chronic exposure, have been identified as a likely candidate for continuing impairment of 

aquatic ecosystems downstream from the Power Plant.

The rather high copper effluent levels prevailing even after the Power Plant has introduced process 

modifications were caused by a waiver for copper (Total Recoverable copper limit of 0.039 mg/L) 

granted in the VDPES permit of Outfall 003,726 the final discharge from the advanced wastewater 

treatment plant which receives all waste water from the ash handling activity. According to VADEQ, the 

effluent limits were developed using currently accepted anti-degradation and mixing zone policies, and 

capable of preserving the 0.0124 mg/L WQS adopted for the Clinch River. 

According to VADEQ,727 based on data from the most recent five-year permit cycle, during the last 

permit action in 2010 the maximum reported concentration of total recoverable copper was 0.037 mg/L 

and the long term average concentration is 0.016 mg/L. The most recent reported aluminum 

concentration for outfall 003 is 0.16 mg/L, higher than the 0.087 mg/L criteria for aluminum. However, 

it is not likely to produce in-stream concentrations which approach the criteria level; because Virginia 

has not adopted WQS for aluminum, no water quality-based effluent limits are contained in the permit. 

Therefore, the state claims that wastewater from Outfall 003 is in compliance with all regulatory water 

quality standards.

Industry728, 729 cites recent studies to suggest that the originally impacted segment of the River has 

completely recovered from the 1967 spill incident, showing an increase of the sensitive mussel 

populations.730, 731, 732 VADEQ is more circumspect about the status of the River’s mussel population: as 

a signatory to an MOU between the State of Tennessee, EPA Regions 3 and Region 4, and the Virginia 

Department of Mines, Minerals and Energy for studying the reasons for the mussel decline at upstream 
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sections of Clinch River and its tributaries,733 VADEQ partakes in the Clinch-Powell Clean Rivers 

Initiative734 to study the reason for the mussel decline. VADEQ believes that blaming mussel decline on 

discharges from the Clinch River Plant, or any cause, is premature completion of the study. 

Resolution: Other than repair of the failed dike, no regulatory action is reported that is related to the ash 

spill. VADEP notes735 that the historical release is a legacy issue which is not an accurate picture of 

Virginia's current regulatory programs. 

High concentrations of the power plant’s effluent metals in the late 1980s were addressed by operational 

changes: the replacement of cooling tower piping (completed in 1987); AEP worked with VADEQ and 

the US Fish and Wildlife Service to study the power plant’s discharges, culminating in construction of an 

advanced wastewater treatment plant (1993) “that has resulted in effluent water quality from the Power 

Plant that is overall superior to ambient river water”. 736 Finally, AES removed Ash Pond 2 from service 

(mid-1990s), eliminating seepage to the Dumps Creek. 

Evaluation against Proven Damage Criteria737

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels 

(MCLs) or other health-based standards 

measured in groundwater at sufficient 

distance from the waste management unit 

to indicate that hazardous constituents 

 None

 

722 The ash from the coal burned at the Clinch River plant had a high free lime (CaO) content, which reacted with 

water in the settling pond to form alkaline slacked lime [Ca(OH)2]. During the release, pH as high as 12.7 was the 

source of toxicity.

723 Lemly (2010) and references therein. Lemly (2010) estimated the monetized value of the damage at $11.4 million

724 Copper effluents levels (average: 0.436 mg/L) exceeded WQC criteria (acute WQC: 0.013 mg/L, and chronic 

WQC: 0.009 mg/L) from 1985 to 1989. Various studies linked these exceedances to depression of enzymatic 

activity in transplanted clams and shifts from pollution-sensitive aquatic insect species to more pollution tolerant 

species. 

725 Hull (2002) and references therein.

726 VADEQ Comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0228.

727 VADEQ Comment to the October 2011 NODA docket, ibid.

728 AEP comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0202.

729 USWAG comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0211.

730 Ahlstedt, Steven A., Current Status of Freshwater Mussel Populations in the Clinch River at the Appalachia 

Power Company’s Clinch River Steam Plant, Russell County, Virginia (Clinch River Miles 268.3 – 264.2). U.S.

Fish and Wildlife Services, December 2008.

731 Written communication from American Electric Power, October 20, 2011.

732 VADEQ has benthic macro-invertebrate stations on the Clinch River upstream of and downstream of the Clinch 

River Plant. The most recent VADEQ data reveal a Virginia Stream Condition Index (VSCI) scores of 71 and 73 (a 

VSCI level of <60 indicates quality impaired for aquatic life use, and >70 is indicative of a very health and diverse 

benthic community).

733 VADEQ Comments to the October 2011 NODA docket: EPA-HQ-RCRA- 2011-0392-0228.

734 CPCRI, which consists of federal and state regulatory and resource agencies, environmental advocacy groups, 

universities, and coal companies. 

735 Commonwealth of Virginia Department of Environmental Quality: EPA-HQ-RCRA-2009-0640-9284.

736 Comment to the 2011NODA docket: EPA-HQ-RCRA-2011-0392-0202.

737 ICF (2010a).
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Other Considerations: This case was listed as a documented case in the EPA’s 1988 Report to 

Congress and identified as a damage case in 1993. However, in EPA (2007), the case was rejected citing

“no evidence of co-management” based on the 1999 Report to Congress. While indeed outside the scope 

of the 1999 Report to Congress due to lack of co-management issues, the case transcends the “comanagement” issue and therefore should not have been rejected in EPA (2007).

ICF (2010a) Rationale: Proven Damage. <Scientific studies have indicated documented ecological 

damage in the form of fish, mollusk, and macro-invertebrate population damage downstream from the 

CCR effluent discharge and from the dike failure in 1967.>

References

EIP (2010a): In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans And Their 

Environment, Thirty-nine New Damage Cases of Contamination from Improperly Disposed Coal 

Combustion Waste, Case #36. The Environmental Integrity Project, EarthJustice and Sierra Club, 

August 26, 2010. http://www.environmentalintegrity.org/news_reports/08_26_10.php

ICF (2010a): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix C, Case #36. ICF, 10/2010.

Lemly (2010): A White Paper on Environmental Damage from Coal Combustion Waste: The Cost of 

Poisoned Fish and Wildlife, A. Dennis Lemly, EPA Docket ID No. EPA–HQ–RCRA–2009–0640, 

December 15, 2010. Accessed Online March 2012.

http://prairierivers.org/wp-content/uploads/2012/03/Lemly-2010-Environmental-Damage-fromCCW.pdf 

EPA (2007): U.S. Environmental Protection Agency (US EPA), Office of Solid Waste. Coal Combustion 

Waste Damage Case Assessments July 9, 2007. Case No. 71, Clinch River, Virginia. Docket Number 

EPA-HQ-RCRA-2006-0796-0015.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

US EPA, Facility Registry System, Facility Detail Report, American Electric Power – Clinch River 

Plant. Accessed Online June 2012. 

http://iaspub.epa.gov/enviro/fii_query_dtl.disp_program_facility?p_registry_id=110000585581

have migrated to the extent that they could 

cause human health concerns

Criterion 2: Where a scientific study 

provides documented evidence of another 

type of damage to human health or the 

environment (e.g., ecological damage)

 A dike failure in 1967 resulted in a large spill of ash slurry 

into the Clinch River. Studies of the spill found severe 

damage to fish, mollusk, and macro-invertebrate 

populations over considerable distances downstream of the 

spill. Follow-up studies noted some lasting effect on 

populations from this spill, as well as continuing damage to 

biota in the area immediately near the ash pond effluent 

discharge. 

Criterion 3: Where there has been an 

administrative ruling or court decision with 

an explicit finding of specific damage to 

human health or the environment

 None
I. CCR Proven Damage Cases December 2014

177

Crossman, J.S., J. Cairns, Jr., and R.L. Kaesler (1973): Aquatic invertebrate recovery in the Clinch River 

following hazardous spills and floods. Bulletin 63 of the Virginia Water Resources Research Center. 

Virginia Polytechnic Institute and State University, Blacksburg, Virginia. Accessed Online June 2012.

http://vwrrc.vt.edu/pdfs/bulletins/1973/Bulletin63.pdf

Virginia Department of Game and Inland Fisheries (2010): Freshwater mussel restoration. Accessed 

Online June 2012.

http://www.dgif.virginia.gov/awcc/freshwater-mussel-restoration/ 

Hull (2002): An Ecotoxicological Recovery Assessment of the Clinch River Following Coal Industryrelated Disturbances in Carbo, Virginia (USA): 1967-2002. Matthew S. Hull, M.Sc. Thesis, Virginia 

Polytechnic Institute and State University, Blacksburg, Virginia, December, 2002. Accessed Online June 

2012.

http://scholar.lib.vt.edu/theses/available/etd-12272002-103204/unrestricted/thesis.pdf

AEP (2009): AEP’s Response to Request for EPA’s Information under CERCLA Section 104(e) for Ash 

Management Units, March 31, 2009. Accessed Online June 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/survey-clinch.pdf

Dewberry & Davis (2011): Coal Combustion Residue Impoundment Round 9 – Final Dam Assessment 

Report, Clinch River Power Plant, Ash Pond Management Units, Appalachian Power d/b/a American 

Electric Power, Carbo, VA, Dewberry & Davis, LLC, December 2011. Accessed Online December 

2013.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/aep-clinch-river-final.pdf

AEP (2011): AEP Shares Plan for Compliance with Proposed EPA Regulations. American Electric 

Power, June 9, 2011. Accessed Online August 2014.

https://www.aep.com/newsroom/newsreleases/?id=1697

PR33. Appalachian Power Company, Glen Lyn, Giles County, Virginia

Type: Surface Impoundments.

Background and Description: The Glen Lyn Power Plant has two onsite ponds for management of 

coal combustion residuals (CCRs), sited on alluvial sediments of the New and East Rivers.

738 One is a fly 

ash pond commissioned in 1965 and covering 7.6 acres.739 The other is a multi-unit bottom ash pond 

 

738 The Glen Lyn plant, with a generating capacity of 338 MW, comprises two generating units (in-service dates in parenthesis): 

100 MW (1944) and 238 MW (1957). According to Dewberry and Davis (2011), the Plant has been operating since 1919. This 

Plant has been used only during peak demand in the winter and summer. It is slated to close by the end of December 2014 

(Roanoke Times, 2011 and AEP, 2011). The Glen Lyn Plant has two cooling water systems, one for each power unit, both of 

which draw water from the pump-house located on the New River. One unit discharges back into the New River while the other 

discharges into the East River (Lynde, 1994.)

739 American Electric Power (2009). The fly ash pond’s storage capacity is 185 acre-feet. According to Dewberry and Davis 

(2011), since the original construction, the Middle pond cell has become a permitted landfill and the Lower pond cell - a stormwater management (SWM) basin that serves the landfill. The Upper pond cell, which is known today as the auxiliary Fly Ash 

Pond, was assessed for preparation of the cited report. It contains a 1-3”-thick clay liner (Dewberry and Davis, ibid, virtual page 

335). Until early 2009, the pond was used as an emergency backup pond for storing wet fly ash. From the 1970s to 2009 the pond 

intermittently received wet fly ash (on average four times a year), until the slurry pipes to the pond were turned off. The fly ash 

pond is currently inactive; fly ash is dry-handled, and either sold for beneficial use or truck-hauled for disposal in an offsite, 

Virginia structural fill (Cumberland Park Fly Ash Project: http://www.natlawreview.com/article/beneficial-use-coal-ash-questionepa-mulls-regulation-0.
I. CCR Proven Damage Cases December 2014

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commissioned in 1963 and covering 5.1 acres, from where ash is routinely removed for beneficial use.740

Some other wastewaters are treated in contiguous units of the bottom ash pond. Effluent was discharged 

from these ponds into Adair Run which then flowed into the New River, until discharges stopped in 

1980.741 The ponds, however, remain active.742 The New River is classified as a “national scenic river” 

by the US National Park Service in recognition of its “outstandingly remarkable” fish and wildlife 

communities.

The Glen Lyn Power Plant is located within the Valley and Ridge physiographic province. Bedrock 

consists of the Bluefield and Hinton formations of Mississippian age. The Bluefield formation which 

underlies the bottom ash pond is shale with some thin inter-bedded layers of sandstone, siltstone, and 

limestone. Nearby exposures show a steeply-dipping competent bedrock. Outcrops of the Hinton 

Formation inter-bedded shale and sandstones are exposed in road cuts adjacent to the fly ash ponds. Also 

adjacent to the ponds is a deeply weathered portion of the formation which is presently being used as a 

borrow area for dike construction Material.743

Impact and Damage Claims: Dewberry and Davis (2011) cite a slope failure of the northern dike, 

which occurred upon first filling of the pond as well as a 10 feet deep sinkhole along the south-west 

corner of the dike. The slope failure and sinkhole incidents appear to have occurred at separate times 

prior to 1978; however, no documentation could be found that confirmed a spill and/or release of CCRs 

due to these incidents. 

EIP (2010a) and Cherry et al., (2000) summarize a number of scientific studies that examined surface 

water impacts at the Glen Lyn Plant in the late 1970s until the discharges stopped in the summer of

1980. EIP (2010a), citing a specific study,

744 indicates that effluent discharges from the ponds impacted 

the biota in the stream, reducing the taxon richness and diversity, particularly for macro-invertebrates 

and fish and impacting microbial measures of aquatic ecosystem function and overall health.745

The adverse impacts of highly alkaline pH on the osmo-regulation and oxygen consumption of the 

mayfly Isonychia bicolor from the New River’s banks next to the Power Plant746 lend support to the 

former study. Another study747 noted that contaminants such as cadmium and nickel bioaccumulated to 

very high levels in duckweed (from a factor of 580 for copper to 10,000 for cadmium and nickel), which 

while not toxic to the plant, could be a source of contaminants rather than an endpoint.748 Finally, 

another study749 noted that the bacterial community was altered by the level of effluent discharge.

Evaluation against Proven Damage Criteria750

Criteria Evaluation

Criterion 1: Documented exceedances of primary maximum 

contaminant levels (MCLs) or other health-based standards 

measured in groundwater at sufficient distance from the 

waste management unit to indicate that hazardous 

constituents have migrated to the extent that they could 

cause human health concerns

 None

Criterion 2: Where a scientific study provides documented 

evidence of another type of damage to human health or the 

environment (e.g., ecological damage)

 A number of studies undertaken in the late 

1970s and 1980s determined that effluent 

discharge from the CCR impoundments 

had an impact on the biota in the stream, 

affecting the diversity of macroinvertebrate, mayfly, and bacterial 

populations. 
I. CCR Proven Damage Cases December 2014

179

Resolution: After the fly ash pond ceased operation in 1980 due to ineffective settling of ash, fly ash 

was disposed in bottom ash ponds and in a landfill on utility company property. As of 2005, the on-site 

landfill was nearly full and most of the ash was being hauled away for disposal at a mine site in West 

Virginia. In 2007, a new off-site structural fill was commissioned nearby in Giles County, Virginia. 

Promoted as a community development project called Cumberland Park, the unlined fill is located in the 

floodplain of the New River. Ash placement began in 2008. 

In its comment to the docket,751 Virginia DEQ Characterizes this damage case as a ‘legacy issue’, 

claiming it is not an accurate picture of Virginia's current regulatory program. According to Virginia 

DEQ,752 the facility has made many improvements to its operation to reduce pollutant loading and the 

volume of discharge. In the current VDEPS permit, Outfall 006 (associated with the wet pond system

and has not had any discharges from the overflow during the past 15 years) and 007 (the discharge of 

which includes the leachate ponds from the existing landfill which currently has its final cap installed) 

are required to be monitored for flow, pH, TSS and oil and grease (biological toxicity testing, using 

Ceriodaphnia dubia, is no longer required for both these Outfalls based on the last 15 years of data for 

Outfall 007). Outfall 006 still requires biological toxicity testing if there is ever a discharge from the 

system. There is also monitoring of total recoverable copper, arsenic, nickel, zinc, and selenium. EIP 

(2010a) references water quality problems from TSS, a rise in pH, and elevated levels of cadmium, 

chromium and selenium; however, the Discharge Monitoring Report data submitted to DEQ do not 

indicate any current issues with TSS or a rise in pH. The New River is impaired with PCBs and perhaps 

bacteria, both unrelated to CCRs. Presently, the DEQ has no reason to suspect a benthic impairment, 

much less one contributed by the Glen Lyn Plant.

Criterion 3: Where there has been an administrative ruling 

or court decision with an explicit finding of specific damage 

to human health or the environment

 None

 

740 Ibid, and Dewberry and Davis (2011). The bottom ash pond is unlined, and its storage capacity is 90 acre-feet. 

The Bottom Ash Pond layout was modified in 1976 to its current multi-cell layout. The bottom ash pond complex is 

a three-pond system (north, south and clearwater cells), where other wastewaters are separately treated in contiguous 

cells. Bottom ash from the Plant is sluiced to either the north or south cell while the other cell remains inactive. The 

inactive cell is periodically dredged of bottom ash after dewatering, and the material is loaded onto trucks where it is 

hauled offsite for permitted disposal. Overflow from the active cell is discharged to the clearwater cell through an 

outlet structure. Water from the clearwater cell flows into a skimmer structure and into a decant tower where it is 

conveyed to East River through a concrete pipe. 

741 According to Dewberry and Davis (2011), the Plant is located along three watercourses; the New River to the 

north, Adair Run just east of the Fly Ash Pond, and East River just west of the Bottom Ash Pond.

742 Regulated under a National Pollutant Discharge Elimination System (NPDES) permit No. WI0002780. 

743 Dewberry and Davis, ibid, Appendix A, Document 3.

744 Specht et al., (1984).

745 Mayflies were greatly reduced in numbers in the ash influenced stream and a population shift occurred whereby 

resistant coleopterans flourished. The fly ash impacts were multiple due to high total suspended solids (TSS = 102 

mg/L), a rise in pH to 9.5, and elevation of selected trace elements such as Cd (90 mg/L), Cr (70 mg/L), Zn (73 

mg/L), As (110 mg/L), and Se (85 mg/L). Lemly (2010) estimated the monetized value of the damage at $160,000.

746 Gregory T. Peters et al (1985).

747 James R. Clark, et al. (1981). 

748 See, for instance, the impact of copper-spiked sediments on the survival rate of benthic juvenile Asiatic clams 

(Corbicula fluminea) (Lynde, 1994).

749 Stephan R. Larrick, et al, (1981).

750 ICF (2010a).

751 EPA-HQ-RCRA-2009-0640-9284.

752 Comment to the October 2011 NODA: EPA-HQ-RCRA-2011-0392-0228.
I. CCR Proven Damage Cases December 2014

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USWAG states753 that the alleged impacts have been completely mitigated and potential sources of 

impacts have been closed. 

ICF (2010a) Rationale: Not a Damage Case Pending Access to the Original Report (Specht et al., 

1984.) <While scientific studies did indicate ecological damage in the stream near this site, specific data 

linking the damage to CCR contamination is not available.>

Postscript: The study by Specht et al. (1984) clearly demonstrates that the ecological damage is linked 

to the elevated pH and metals associated with the thermal CCR effluents discharge into the tributary of 

the New River.

References

EIP (2010a): In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their 

Environment, Thirty-Nine New Damage Cases of Contamination from Improperly Disposed Coal 

Combustion Waste, Case #37. The Environmental Integrity Project, EarthJustice and Sierra Club, 

August 26, 2010. 

http://www.environmentalintegrity.org/news_reports/08_26_10.php

ICF (2010a): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases,

Appendix C, Case #37. ICF, 10/2010.

US EPA, Facility Registry System, Facility Detail Report, Appalachian Power Glen Lyn Power Plant.

Accessed Online June 2012. 

http://iaspub.epa.gov/enviro/fii_query_dtl.disp_program_facility?p_registry_id=110000585518

Cherry et al., (2000): Cherry, D.S., R.J. Currie, and D.J. Soucek. 2000. Review of the Global Adverse 

Environmental Impacts to Ground Water and Aquatic Ecosystems from Coal Combustion Wastes. 

Prepared for the Hoosier Environmental Council and Citizens Coal Council (Mar. 28, 2000). Accessed 

Online June 2012. http://citizenscoalcouncil.org/wp-content/uploads/2012/04/A-REVIEW-OF-THEADVERSE-ENVIRONMENTAL-IMPACTS-OF-COAL-COMBUS.htm

James R. Clark, et al. (1981): Accumulation and Depuration of Metals by Duckweed (Lemna 

perpusilla). Clark, J. R., J. H. Van Hassel, R. B. Nicholson, D. S. Cherry and J. Cairns, Jr. Ecotoxicology 

and Environmental Safety 5:87-96, 1981. Accessed Online June 2012. 

http://pdn.sciencedirect.com/science?_ob=MiamiImageURL&_cid=272576&_user=14684&_pii=01476

51381900488&_check=y&_coverDate=1981-03-01&view=c&wchp=dGLbVlVzSkWA&md5=bd3d1742e22f531916c15d1068e426f0/1-s2.0-0147651381900488-main.pdf

Stephan R. Larrick, et al, (1981): Structural and Functional Changes of Aquatic Heterotrophic Bacteria 

to Thermal, Heavy and Fly Ash Effluents. Larrick, S. R., J. R. Clark, D. S. Cherry and J. Cairns, Jr. 

Water Res. 15:875-880, 1981. Accessed Online June 2012. 

 

753 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0201: “The wet operations were converted to 

dry operations that led to removal and closure of the wet fly ash pond. Cessation of effluent discharges into the 

receiving stream in the summer of 1980 resulted in ecological recovery (based on a study of benthic macroinvertebrates) within a period of 10 months. No toxicity was measured from the fly ash pond during its operation 

and although the studies cited in the reference document [EIP (2010a)] showed some differences in biotic 

communities upstream versus downstream of the former fly ash pond discharge, no acute or chronic toxic effects 

were demonstrated. Valid effluent samples were collected on a recurring basis under the NPDES program, evaluated 

by Virginia DEQ, and found acceptable for meeting state water quality standards.”
I. CCR Proven Damage Cases December 2014

181

http://www.jstor.org/discover/10.2307/4250746?uid=307624801&uid=3739936&uid=2129&uid=2&uid

=70&uid=3&uid=16748408&uid=67&uid=62&uid=3739256&sid=21100649605276

Lemly (2010): A White Paper on Environmental Damage from Coal Combustion Waste: The Cost of 

Poisoned Fish and Wildlife, A. Dennis Lemly, EPA Docket ID No. EPA–HQ–RCRA–2009–0640, 

December 15, 2010. Accessed Online March 2012.

http://prairierivers.org/wp-content/uploads/2012/03/Lemly-2010-Environmental-Damage-fromCCW.pdf

Lynde (1994): Lynde, S.R, Techniques For Evaluating Power Plant Discharges Using In-Situ Leaf 

Breakdown And Flow-Through Laboratory Sediment Bioassays. M. Sc. Thesis submitted to the 

Graduate Faculty of Virginia Polytechnic Institute and State University, 1994. Accessed Online June 

2012. http://scholar.lib.vt.edu/theses/public/etd-36202069662011/etd.pdf.

Gregory T. Peters et al (1985): Response of Isonychia bicolor to Alkaline pH: an Evaluation of Survival, 

Oxygen Consumption, and Chloride Cell Ultrastructure. Gregory T. Peters, Donald S. Cherry, John 

Cairns Jr, Can. J. Fish. Aquat. Sci. 42, 1088-1095 (1985). Accessed Online June 2012. 

http://www.nrcresearchpress.com/doi/abs/10.1139/f85-135

Rowe et al., (2002): Ecotoxicological Implications of Aquatic Disposal of Coal Combustion Residues in 

the United States: A Review. Rowe, C.L., W.A. Hopkins and J.D. Congdon, Environmental Monitoring 

and Assessment 80:207-276. Accessed Online June 2013.

http://www.ncbi.nlm.nih.gov/pubmed/12503897 and

http://cfpub.epa.gov/ncer_abstracts/index.cfm/fuseaction/display.publicationAbstract/publication_id/125

23.

Specht et al., (1984): Specht, W. L., Cherry, D. S., Lechleitner, R. A. and Cains, J., Jr., Structural, 

Functional and Recovery Responses of Stream Invertebrates to Fly Ash Effluent, Can. J. Fish, Aquat. 

Sci. 41, 884-896 (1984). Accessed Online June 2012. 

http://www.nrcresearchpress.com/doi/abs/10.1139/f84-105

American Electric Power (2009): Response to Request for Information under CERCLA Section 104(e) 

for Ash Management Units, March 31, 2009. Accessed Online June 2012.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys/aep.pdf

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/survey-glenlyn.pdf

Roanoke Times (2011): Appalachian Power's Glen Lyn plant in Giles County faces shutdown. 

Roanoke.com, June 10, 2011. Accessed Online June 2012.

http://www.roanoke.com/news/roanoke/wb/289337

AEP (2011): AEP Shares Plan for Compliance with Proposed EPA Regulations. American Electric 

Power, June 9, 2011. Accessed Online August 2014.

https://www.aep.com/newsroom/newsreleases/?id=1697

Dewberry and Davis (2011): Coal Combustion Residue Impoundment, Round 9 – Final Dam 

Assessment Report, Glen Lyn Power Plant, Ash Pond Management Units, Appalachian Power d/b/a 

American Electric Power, Glen Lyn, Virginia, Dewberry and Davis, LLC, December 2011. Accessed 

Online December 2013.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/aep-glen-lyn-final.pdf
I. CCR Proven Damage Cases December 2014

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PR34. Virginia Power Yorktown Power Station Chisman Creek Disposal Site, Yorktown, 

York County, Virginia

Type: Sand and Gravel Pits.

Brief Description: Between 1957 and 1974, four abandoned, unlined sand and gravel pits754 at the 27-

acre site received over 500,000 tons of fly ash from the combustion of coal and petroleum coke at the 

Yorktown Power Station.

755 The site consists of four former ash disposal areas, three man-made ponds, 

freshwater intermittent stream that drains the site, and the upper tidal portion of the Chisman Creek 

estuary. Chisman Creek discharges into the Chesapeake Bay. Topographically, the site is a broad, 

terraced plain incised by the freshwater tributary. The terraced plain is an ancient geologic shoreline of 

the Chesapeake Bay. Surface elevations range from approximately 45 feet above mean sea level 

immediately to the west of the site down to sea level in the east.

756

Local surface soil is the moderately to highly permeable, 0 to 20 feet thick, Quaternary-age Tabb 

Formation.757 It is composed of medium sand with some gravel and fine silty, clayey sand. The EarlyPliocene Yorktown Formation, of comparatively lower permeability, underlies the Tabb Formation.758

 It 

is composed of silty sand with calcareous fossil debris. The interface separating the strata is a significant 

geochemical and physical groundwater boundary. Local groundwater flow in the Tabb Formation is 

generally toward the east and north, toward the tributary stream and estuarine creek. Shallow 

groundwater flow has been interrupted by the presence of the borrow pits and ponds.759

Impact: Disposal at the site ended in 1974, when Virginia Power began burning oil at the Yorktown 

plant. In 1980, nearby shallow residential wells became contaminated with nickel and vanadium. 

Arsenic, beryllium, chromium, copper, selenium, and molybdenum were also detected at elevated 

concentrations.760

 

754 According to Robert (2004), the ash disposal areas are former sand/aggregate quarries or borrow-pits that were 

filled with coal combustion byproducts from Yorktown Power Station. The disposal areas are known as Areas A, B, 

C, and D. Ash in Area D was later removed and relocated in Area C. The three man-made ponds are borrow-pits that 

never received ash and are known as Ponds A, B, and C.

755 According to Robert (2004), Yorktown Power Station is located approximately one mile east of the village of 

Yorktown and approximated two miles north of the damage site. It has a 376 MW generation capacity with two 188 

MW units each units that came online in 1957 and 1959. Virginia Electric and Power Company, a unit of Dominion 

Resources, Inc., owned and operated Yorktown Power Station and contracted with Brandt for ash disposal services. 

On September 1, 2011, Dominion Virginia Power announced that one coal-fired unit at the Yorktown Power Station 

would likely close by 2015 and a second coal-fired unit would likely be converted to natural gas (Dominion, 2011). 

756 Ash placement activities in the past have elevated the surface of the disposal pits as much as 20 feet above the 

surrounding terrain.

757 http://mrdata.usgs.gov/geology/state/sgmc-unit.php?unit=VAQt%3B0; and Peebles et al., (1984).

758 Ward and Blackwelder (1980).

759 According to 

http://www.yorkcounty.gov/LinkClick.aspx?fileticket=W7Zfa62AR8U%3D&tabid=1723&mid=2756, the site is 

located in an area where groundwater table lies within less than 2.5 feet below ground surface.

760 EPA’s (2007) identification of selenium as the key contaminant at the Chisman Creek site is not compatible with 

information (e.g., Nature and Extent of Trace Element, 1983, Table 11), whereby selenium levels in impacted 

residential wells were lower than the corresponding levels in reference wells. However, Siudyla and May (1981) 

demonstrate (Tables 3 and 4) that the key contaminants sampled by monitoring wells installed in shallow 

groundwater are vanadium, manganese, zinc, chromium, nickel, sulfate, and selenium.
I. CCR Proven Damage Cases December 2014

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The contamination at the site’s vicinity was caused by the combination of several factors: (i) The facility 

was operated with no fugitive dust or erosion controls; (ii) The facility is unlined and located in close 

proximity to drinking water wells, and ground water at the site was very shallow and possibly in contact 

with disposed waste; and (iii) A surface water tributary passed through or near the disposal areas.

Resolution: In September 1983, EPA added the site to the NPL under CERCLA.761 EPA performed a 

Remedial Investigation (RI) and Feasibility Study (FS) between 1984 and 1986. The RI/FS determined 

that the groundwater contamination was localized in the area of the pits.

In September 1986, a ROD was issues for operable unit number 1 (OU1), which included disposal pits 

and groundwater. The ROD included capping the disposal pits, groundwater and leachate collection for 

treatment and to lower the water table beneath the pits, replacement water supply wells to 55 homes with 

contaminated well water, and post-closure monitoring. In 1988, EPA issued a ROD for operable unit 

number 2 (OU2), which included relocation of a 600-foot portion of the tributary to minimize contact 

with the fly ash disposal areas, diversion of surface runoff, and long-term monitoring for the ponds, 

tributary, and estuary. 

Construction of all cleanup components was completed on December 21, 1990. The site has been 

redeveloped as a public park, including a baseball and a soccer field.762 Contaminated groundwater is 

currently pumped from the area beneath the baseball fields and treated off site at a local wastewater 

treatment plant. Following the completion (in December 2006) of its third five-year review of the site,763

EPA determined that the remedial action at OU1 is protective in the short term because the extent of the 

vanadium contamination in the shallow ground water aquifer is not presently known. In December 2011, 

EPA completed the fourth five-year review of the site. EPA is presently working with Virginia Power to 

determine the extent of the vanadium contamination and to amend the restriction to make sure it 

provides the necessary assurance that it will be protective over time. After three rounds of sampling the 

groundwater in the vicinity of Area C, EPA believes only one more round of sampling will be necessary 

to completely define the extent of the vanadium contamination. It is anticipated that the last round of 

sampling will take place in the winter of 2013.

Previous Basis for Consideration:

764 The Chisman Creek disposal site was designated as a proven 

damage case in the 1999 Report to Congress.765 According to EPA (2007), the justification for this status 

is based on: Scientific: (i) Drinking water wells contained selenium above the (health-based) primary 

MCL, and (ii) there is evidence of surface water and sediment contamination. Administrative: the site 

was remediated under CERCLA.

ICF (2010) Rationale: Proven Damage. <Offsite groundwater exceeded MCLs for selenium. 

Administrative order specified groundwater use restrictions to mitigate risk from CCR leachates.>

 

761 EPA Region 3 (2012).

762 Chisman Creek Park is located east of Wolf Trap Road (Virginia Rte 630).

763 EPA (2012).

764 EPA (2007), and Report to Congress (1999)

765 In its comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0432, Appendix C, USWAG claims that 

even if EPA assessment of Chisman Creek is limited to selenium levels (which ignores the fact that vanadium and 

nickel were the drivers for the CERCLA remediation), the data still indicate that the primary source of the

contamination was pet-coke ash. Accordingly, USWAG requests that EPA remove Chisman Creek from the CCR 

“proven” damage case list and reclassify it as a pet-coke site.
I. CCR Proven Damage Cases December 2014

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References

EPA (2007): Coal Combustion Waste Damage Case Assessments, Case # 6, docket ID EPA-HQ-RCRA2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #6. ICF, 10/2010.

Report to Congress (1999): Technical Background Document for the Report to Congress on Remaining 

Wastes from Fossil Fuel Combustion: Potential Damage Cases. March 15, 1999. Accessed Online July 

2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ffc2_397.pdf

EPA Region 3 (2012): Chisman Creek, York County, Virginia Superfund Program Site Fact Sheet EPA 

Superfund. Accessed Online July 2012.

http://epa.gov/reg3hwmd/npl/VAD980712913.htm 

EPA (2012): (Current Site Information, ROD, and 2006 Five-Year Report). Accessed Online July 2012.

http://www.epa.gov/reg3hscd/super/sites/VAD980712913/

Robert (2004): Williams, Robert J., Chisman Creek Superfund Site: A Retrospective Review, pp. 93-99, 

In Department of Interior Office of Surface Mining and Southern Illinois University, Proceedings of 

State Regulation of Coal Combustion By-Product Placement of Mine Sites: Technical Interactive Forum, 

Harrisburg, Pennsylvania, May 4-6, 2004 (Mine Placement Proceedings). Accessed Online July 2012.

http://www.mcrcc.osmre.gov/MCR/Resources/ccb/PDF/State_Regulation_of_CCB_Placement.pdf

Peebles et al., (1984): The Middle and Late Pleistocene Stratigraphy of the Outer Coastal Plain, 

Southeastern Virginia; Pamela C. Peebles, Gerald H. Johnson, and C. R. Berquist. Virginia Minerals, 

Vo. 30, No. 2, pages 13-23, May 1984. Accessed Online July 2012.

https://www.dmme.virginia.gov/DMR3/dmrpdfs/vamin/VAMIN_VOL30_NO02.pdf

Ward and Blackwelder (1980): Stratigraphic Revision of Upper Miocene and Lower Pliocene Beds of 

the Chesapeake Group, Middle Atlantic Coastal Plain. Lauck W. Ward and Blake W. Blackwelder, in

Contributions to Stratigraphy. Geologic Survey Bulletin 1482-D, 1980. Accessed Online July 2012.

http://pubs.usgs.gov/bul/1482d/report.pdf

Nature and Extent of Trace Element Contamination (1983): The Nature and Extent of Trace Element 

Contamination Associated with Fly-Ash Disposal Sites in the Chisman Creek Watershed. College of 

William and Mary, Virginia, Institute of Marine Science, Glouchester Point, Virginia, and Virginia 

Associated Research Campus, Newport News, Virginia, EPA Region 3: Mid-Atlantic Region Hazardous 

Site Cleanup Division, Administrative Record on the Web, June 1983, 106 pages. Accessed Online May 

2014.

http://loggerhead.epa.gov/arweb/public/search_results.jsp?siteid=VAD980712913#

Siudyla and May (1981): Investigation of Shallow Groundwater Contamination from Fly Ash Disposal 

in York County, E.A. Siudyla and A.E. May, Tidewater Regional Office, State Water Control Board, 

May 21, 1981. Accessed Online May 2014.

http://loggerhead.epa.gov/arweb/public/search_results.jsp?siteid=VAD980712913#
I. CCR Proven Damage Cases December 2014

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Dominion (2011): Dominion Virginia Power 15-Year Plan Targets Reliable, Cost-Effective Solutions for 

Growing Energy Needs. Dominion News, September 1, 2011. Accessed Online August 2014.

http://dom.mediaroom.com/index.php?s=26677&item=71833

PR35. John E. Amos Power Plant, Appalachian Power, Winfield, Putnam County, West 

Virginia

Type: Surface Impoundments and (not implicated) Landfills.

Background and Description: The John Amos Power Plant766 located by the Kanawha River bank in 

Winfield, West Virginia (just across the river from Raymond City, West Virginia) disposes of coal ash 

waste in several impoundments,767 the largest of which is the unlined, 175-acre Little Scary Creek (LSC) 

fly ash surface impoundment. The LSC impoundment has a storage capacity of 2,687 acre-feet and a 

dam height of 223 feet. The fly ash slurry from one of the Power Plant’s three generating units is 

pumped to this large headwaters impoundment. Until recently, the treated fly ash decant water was 

discharged at Outfall 001 to LSC, formerly a small tributary to the Kanawha River. Until August 2010, 

when wet sluicing to the impoundment ceased,768 about 95 percent of the Creek’s total flow comprised 

treated and decanted fly ash impoundment discharge.

Five additional impoundments used to store bottom ash are located at the power plant. These 

impoundments were commissioned in 1971, cover approximately 30 acres, and have a total storage 

capacity of 357 acre-feet.769 Two active landfills and one recently constructed and permitted landfill are 

also in operation.770 

 

766 The John E. Amos Plant has a nameplate generating capacity of 2,933 MW. It comprises three generation units: 

Units 1 and 2 have a nameplate generating capacity of 816.3 MW each, and were started up in September 1971, and 

June, 1972 respectively. Unit 3, rated at 1,300 MW, was started up in October, 1973. All units are supercritical, drybottom boilers powered by a blend of low-sulfur coal and Northern Appalachian Basin high-sulfur coal 

(http://findarticles.com/p/articles/mi_m0EIN/is_2005_Nov_4/ai_n15776786/). 

767 According to Dewberry and Davis (2009) and Dewberry and Davis (2009a), all commissioned in 1971. There are 

also a New Landfill (WVPDES 0001074); the Quarrier landfill (WVPDES # 0077046), and a new landfill, slated to 

become operative in April 2009 (WVPDES # 0116254).

768 Comment to the 2011 NODA: EPA-HQ-RCRA-2011-0392-0202.

769 Of these, four were active (1A and 1B - two raw water intake basins, a primary clarifier reservoir, and a 

secondary clarifier reservoir) during the site visit of Dewberry and Davis (2009a); a fifth cell, located in the 

northwest corner of the Complex, was reportedly filled during the late 1980s or early 1990s. And see WVDEP 

(2009a) and Dewberry and Davis (2009a, Fig. 2.2-1 and narrative). Due to their small dam height (24 feet), they 

were outside the scope of Dewberry and Davis (2009). Two of the five existing fly/bottom ash ponds utilized for fly 

ash temporary disposal (1A and 1B) are large enough for WVDEP dam safety jurisdiction. Current (2009) operation 

of the ponds consist of sluicing bottom ash into Ponds 1A or 1B, allowing particles to settle and the overflow to 

circulate to the reclaim pond. The active/inactive status alters between Ponds 1A and 1B approximately every one to 

two years. After the active cell becomes full, it is placed in inactive status to dry and to be cleaned out. The decant 

water from either cell discharges into the primary clarifying cell and then into the secondary clarifying cell 

(Treatment Basin). WVDEP has recently approved a modification to combine the two ponds into one structure by 

raising the surrounding embankments.

770 According to WVDEP (2009a), a February 2009 site inspection of the Quarrier Landfill (WVPDES # 0077046) 

triggered a NOV (F09-40-066-JHH), for failure to properly operate and maintain all facilities and system of 

treatment and control to achieve compliance with NPDES permit: the storm water related violations included 

inadequate sedimentation controls and practices, insufficient revegetation, and fly ash deposited in wetlands on both 

sides of haul road. 
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The plant area is underlain by Quaternary-age alluvium consisting of lenticular floodplain deposits of 

clay, silt and sand with some gravel lenses to a depth of about 50 feet. Bedrock consists of 

Pennsylvanian-age shale, coal, clay and very limited amounts of limestone (there is no karst terrain 

within the site area). The Pennsylvanian deposits range from 3,000 to 3,800 feet in thickness and are 

relatively horizontal to slightly-folded. Groundwater in the plant area is near the pool level of the 

Kanawha River (about 566 feet) within the alluvial sediments underlying the facility while the upland 

areas are primarily stress relief fracture flow marked by secondary porosity resulting from fracturing. 

Groundwater flow in the upland area tends to follow the stress relief fracture flow pattern that typically 

mimics surface topography while flow within the alluvium sediments underlying the plant is primarily 

towards the Kanawha River or Bill’s Creek.771

Surface water discharge from the impoundments into LSC has exceeded NPDES permit criteria several 

times in the past; however the state has granted variances for surface water criteria. WVDEP granted 

site-specific variances from the statewide numeric criteria for selenium (0.062 mg/L) and copper (0.105 

mg/L daily max, 0.049 mg/L 4-day average) for the LSC fly ash impoundment discharge. However, 

selenium exceedances (0.0600 mg/L to 0.110mg/L) were reported in 10-monthly reports between June

2009 and August 2010. In addition, arsenic violations (0.135 mg/L) were reported in June and July 

2009.772

Effluent discharge is planned to be rerouted into the Kanawha River to avoid LSC in the future. There 

are no onsite or offsite groundwater data available. Surface water has been evaluated onsite and offsite. 

Impact and Damage Claims: EIP (2010) indicates that levels of selenium in effluent water discharge 

from the site have exceeded NPDES permit limits. EIP (2010) also indicates that levels of selenium in 

surface water samples from LSC exceeded West Virginia’s acute and chronic water quality standards for 

the protection of aquatic life. Average selenium concentrations in LSC are more than x6 higher than the 

state‘s standard that protects aquatic life from chronic toxic effects to selenium exposure in surface 

waters. According to WVDEP,773 the previous permit (WV0001074) contained effluent limits for 

selenium on Outlet 001 (Maximum Daily of 0.062 mg/L). The reissued permit (July 17, 2007) contains 

that same limit as an interim limit with a compliance schedule to meet final limits of 0.0381 mg/L 

average monthly and 0.062 mg/L max daily.774 “The facility was given a compliance schedule to meet 

end-of- pipe chronic toxicity limitations on this discharge in the most recent permit. As a result of this, 

the facility has indicated to us that they intend to reroute this discharge to the Kanawha River and 

eliminate it from LSC due to issues in achieving these limits. In order to comply with the final limits for 

toxicity, they must report less than 1 TUc. Data submitted thus far for the daphnia species has been 2.0 

TUc (October 2007), 8.0 TUc (January 2008), and 4.0 TUc (April 2008).”

EIP (2010) indicates that selenium concentrations in September 2006 fish tissue data (average 

concentration 58.02 mg/kg) well exceeded EPA’s proposed Chronic Exposure selenium fish tissue 

criterion (7.91 mg/kg dry weight, EPA 2004)775 and a threshold value established by a selenium expert at 

 

771 Dewberry and Davis (2009b), Appendix V, virtual page 886.

772 EPA’s ECHO: http://www.epa-echo.gov/cgibin/effluents.cgi?permit=WV0001074&charts=viols&monlocn=all&outt=all

773 Rebuttal to EPA-HQ-RCRA-2006-0796-0446

774 Hence, the information presented on Page 20 of EPA-HQ-RCRA-2006-0796-0446, regarding the discharge from 

this facility not having any selenium limits is incorrect.

775 In addition, if whole-body fish tissue concentrations exceed 5.85 μg/g dw during summer or fall, fish tissue 

should be monitored during the winter to determine whether the selenium concentration exceeds 7.91 μg/g dw. Draft 

Aquatic Life Water Quality Criteria for Selenium – 2004; EPA-822-D-04-001, November 2004 (Page 82):
I. CCR Proven Damage Cases December 2014

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the USDA Forest Service (4 mg/kg, Lemly 2002).776 EIP (2010) also suggests that the average 

concentration of selenium in fish tissue associate with the site should trigger a West Virginia fish 

consumption advisory, restricting consumption to no more than 6 meals a year.777

In his comment to the docket, Lemly778 states that the impoundment’s discharges contaminated streams 

and increased the concentration of five trace metals (cadmium, chromium, copper, lead, and zinc) and 

two metalloids (selenium and arsenic) in fish. Selenium has bio-accumulated in aquatic food chains and 

fish tissues to levels exceeding a toxic threshold (4 mg/kg whole-body, dry weight). Physiological and 

biological changes indicated that fish were poisoned by fly ash effluent, and that some reproductive 

impairment occurred, although no detailed reproduction studies were conducted to quantify the levels of 

impairment. The last biological effects assessment (1996) showed that fish were still being poisoned.779 

According to WVDEP,780 LSC exhibited valance state selenium almost exclusively (93.9 percent) in the 

selenite (Se+4) form, which is reported to be more bioaccumulative.

AEP confirms781 that LSC has approved site-specific criteria for copper and selenium (for selenium: 62 

μg/L). AEP claims, however, that while EIP (2010) cites WVDEP high fish selenium tissue levels as 

evidence of the degradation of aquatic life uses, WVDEP has not adopted any numeric fish tissue criteria 

for selenium, and USEPA is not expected to finalize the revised aquatic life criteria for selenium until 

2012. AEP claims that there is evidence in the scientific literature (including studies specific to the LSC) 

that levels of selenium in freshwater fish can be high, but without significant population-level impacts. 

AEP claims that according to numerous biological studies they have conducted in LSC, the LSC 

supports a fairly diverse fauna despite the Creek being comprised of almost entirely fly ash pond 

discharge water.

In reference to the evidence cited above, USWAG’s statement782 that this case does not meet the criteria 

for a damage case to surface water because there is no evidence that the aquatic life use in Little Scary 

Creek is, or was previously, impaired due to selenium levels in fish tissue is untenable. 

Evaluation against Proven Damage Criteria783

Criteria Evaluation

Criterion 1: Documented 

exceedances of primary maximum 

contaminant levels (MCLs) or other 

health-based standards measured 

in groundwater at sufficient 

distance from the waste 

management unit to indicate that 

 None

 

http://water.epa.gov/scitech/swguidance/standards/criteria/aqlife/pollutants/selenium/upload/complete.pdf:

776 Lemly (2002).

777 According to WVDEP (2009), sampling in the LSC between November 1, 2005, and July 20, 2007, yielded the 

following average selenium concentration values: water column: 31.5 ppb; fish tissue: 40.43 ppm; Sunfish tissue: 

6.20 ppm; and Minnow tissue: 54.69 ppm. The bioaccumulation factor was calculated as 1283 L/kg.

778 EPA-HQ-RCRA-2009-0640-6313, Appendix I.

779 Lemly estimated the total case monetized damage at close to $470,000.

780 WVDEP (2009); and see http://wvmdtaskforce.com/proceedings/06/Campbell.pdf for a discussion of the 

scientific contention about selenium toxicity in fish.

781 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0202. See References for citations of the 

(Utility-funded) Little Scary Creek Selenium-in fish studies (Lohner et al., 2001; and Reash et al., 1999).

782 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0211.

783 ICF (2010).
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Other Considerations

 West Virginia granted site-specific variances from the statewide numeric NPDES criteria for 

selenium and copper for Little Scary Creek impoundment discharges. 

 No study documents damage to the environment from the selenium levels and direct implication 

of CCRs given prevalence of selenium laden effluents from other sources, including coal 

mining.

 Despite elevated levels in fish tissue, there is no documentation of human health risk in part as 

fish in study were primarily Creek Chubs which are minnow sized fish, unlikely to be directly 

eaten by humans. The concentrations are likely to accumulate in the food-chain, but no study 

documents the damage in this case.

 Fish analysis, performed by two separate laboratories and three different sample collection 

events, generally confirm results. 

 According to AEP,784 wet sluicing to the impoundment ceased in August 2010; consequently, 

LSC no longer receives treated fly ash water and has returned to its original headwater stream 

characteristics.785

Resolution: On August 1, 2014, a coalition of citizens groups reached a consent decree with 

Appalachian Power Company (APCo) concerning major changes in the operations at the Amos Plant, 

and the status of its appeal of WV NPDES Permit No. WV0001074, a draft of which was issued by the 

WV DEP on April 1, 2014.786 This draft permit revises the final effluent limitations at Outlet 003. On 

August 1, 2014, Plaintiffs filed their Complaint in this action alleging that, notwithstanding the issuance 

of administrative orders by WV DEP extending the compliance schedule for achieving final effluent 

limitations at Outlet 003, APCo violated the terms of WV NPDES Permit No. WV0001074, as revised in 

2011, by exceeding the daily maximum and monthly average limitations for mercury and monthly 

hazardous constituents have 

migrated to the extent that they 

could cause human health concerns

Criterion 2: Where a scientific 

study provides documented 

evidence of another type of damage 

to human health or the environment 

(e.g., ecological damage)

 Selenium exceeded NPDES permit limits in effluent discharge 

from the impoundment.

 Selenium detected in surface water samples from Little Scary 

Creek exceeded West Virginia’s water quality standards for 

protection of aquatic life.

 Selenium concentrations in both species reported, Creek Chub fish 

tissue data (average 58.02 mg/kg) and Green Sunfish (average 

11.72 mg/kg dry weight) well exceeded EPA’s proposed selenium 

fish tissue criterion (7.91 mg/kg, EPA 2004) and a threshold value 

established by a selenium expert at the USDA Forest Service (4 

mg/kg, Lemly 2002).

Criterion 3: Where there has been 

an administrative ruling or court 

decision with an explicit finding of 

specific damage to human health or 

the environment

 None (No advisory has been issued by the State, and no action 

has been taken by the Power Plant). 

 

784 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0202.

785 According to AEP (2014), following the Plant’s conversion from a wet fly ash system to a dry fly ash system, by 

November 2010 all fly ash pond discharges to Outlet 001 ceased.

786 West Virginia Rivers Coalition et al., (2014). Plaintiffs are West Virginia Highlands Conservancy, Ohio Valley 

Environmental Coalition, and Sierra Club.
I. CCR Proven Damage Cases December 2014

189

average limitations for selenium at Outlet 003. Based on the negotiations of the Parties, simultaneously 

with the filing of the Complaint, the Parties lodged this Consent Decree with the Court.787

ICF (2010) Rationale: Not a Damage Case. <There are no documented exceedances of primary EPA 

MCLs in onsite or offsite groundwater. While there are limited and sporadic exceedances of selenium 

NPDES permit limits in the discharge from the impoundment, the state granted variances on the 

statewide numeric criteria for selenium. Similarly, while surface water and fish tissue samples from 

Little Scary Creek had selenium concentrations above various comparison criteria, there is no scientific 

study that links these exceedances to evidence of damage to human health or the environment and 

implicates CCRs. There are no regulatory corrective actions, administrative rulings, or court decisions 

associated with the site.>

Postscript: Based on the evidence for excessive selenium effluents and high selenium contents in fish 

tissue, and notwithstanding State variance, this case qualifies as a proven, ecologic damage case.

References

EIP (2010): Out of Control: Mounting Damages from Coal Ash Waste Sites, Thirty-one New Damage 

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #30. The 

Environmental Integrity Project and EarthJustice. February 24, 2010. Accessed Online September 2013.

http://www.environmentalintegrity.org/news_reports/news_02_24_10.php

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases,

Appendix B, Case #30. ICF, 10/2010.

Dewberry and Davis (2009): Coal Combustion Waste Impoundment Task 3- Dam Assessment Report, 

John E. Amos Plant (Site 26), Fly Ash Dam Complex, American Electric Power, St. Albans, West 

Virginia, Revised December 2009. Accessed Online June 2012. 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/aep-amos-fafinal.pdf

Dewberry and Davis (2009a): Coal Combustion Waste Impoundment Task 3- Dam Assessment Report, 

John E. Amos Plant (Site 26), Bottom Ash Dam, American Electric Power, St. Albans, West Virginia, 

December 2009. Dewberry and Davis, LLC, October 2009. Accessed Online January 2014. 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/aep-amos-bafinal.pdf

 

787 The proposed injunctive relief is fir APCo to achieve compliance with the applicable limitations for mercury and 

selenium at Outlet 003 included in the Amos NPDES Permit by the Compliance Deadline (6 months after the 

issuance of the final permit based on the Draft Amos NPDES Permit, or June 30, 2015, whichever is later). APCo 

shall pay for mitigation activities to improve, conserve and protect natural resources in the State of West Virginia by 

providing mitigation funding in the amount of $38,250 for the land acquisition, restoration and/or conservation 

activities of the West Virginia Land Trust, and in addition shall pay a civil penalty amount of $4,250 to the United 

States. Together with the Mitigation Payment, the payment of this civil payment is made in settlement of all of 

Plaintiffs’ claims in this action under the CWA for violations occurring prior to the Effective Date of this Consent 

Decree.

Defendant shall be liable for stipulated penalties in the following amounts if it fails to achieve and maintain 

compliance with the applicable maximum daily and monthly average limitations for mercury and selenium at Outlet 

003 in the Amos NPDES Permit at any time after the Compliance Deadline: (i) $1,500 per exceedance for the daily 

maximum limitation for mercury or selenium; (ii) $3,000 per exceedance for the monthly average limitation for 

mercury or selenium.
I. CCR Proven Damage Cases December 2014

190

Dewberry and Davis (2009b): Coal Combustion Waste Impoundment Task 3- Dam Assessment Report, 

John E. Amos Plant (Site 26), Appendices. Accessed Online January 2014. 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/aep-amos-comboappend.pdf

Lemly (2002): Selenium Assessment in Aquatic Ecosystems, a Guide for Hazard Evaluation and Water 

Quality Criteria. Dennis A. Lemly. Springer, New York, 2002. Accessed Online June 2012.

http://books.google.com/books?id=qGH37iOW7yMC&printsec=frontcover&source=gbs_ge_summary_r

&cad=0#v=onepage&q&f=false

Lemly (2010): A White Paper on Environmental Damage from Coal Combustion Waste: The Cost of 

Poisoned Fish and Wildlife, A. Dennis Lemly, EPA Docket Comment EPA–HQ–RCRA–2009–0640-

6313, Appendix I, December 15, 2010. Accessed Online June 2012.

http://prairierivers.org/wp-content/uploads/2012/03/Lemly-2010-Environmental-Damage-fromCCW.pdf

WVDEP (2009): Selenium Bioaccumulation among Select Stream and Lake Fisheries in West Virginia, 

West Virginia Dept. of Environmental Protection, February 2009. Accessed Online June 2012.

http://www.dep.wv.gov/WWE/watershed/wqmonitoring/Documents/Selenium/Se_Fish_Tissue_Summar

y_Paper_final_Feb09.pdf

WVDEP (2009a): Fly Ash Dam/Landfill Condition Evaluation. West Virginia Department of 

Environmental Protection, Division of Water and Waste Management, Environmental Enforcement 

November 2009. Accessed Online June 2012.

http://www.dep.wv.gov/WWE/ee/ds/Documents/Status_WV_Fly_Ash_Dams_Landfills_Nov609.pdf

Lohner et al., (2001): Ecotoxicological assessment of bluegill sunfish inhabiting a selenium-enriched fly 

ash stream. 1. Hematological and Population Level Assessment. T. W. Lohner, R. J. Reash, V. E. Willet, 

and L. A. Rose. Ecotoxicology and Environmental Safety 50, 203-216 (2001), Environmental Research, 

Section B. Accessed Online July 2012.

http://203.250.122.194/blood/b_chem/b_chem_019.pdf

Lohner et al., (2001a): Assessment of tolerant fish populations (Lepomis sp.) inhabiting selenium-laden 

coal ash effluents: 3. Serum Chemistry and Fish Health Indicators. T. W. Lohner, R. J. Reash, V. E. 

Willet, J. Fletcher. Ecotoxicology and Environmental Safety 50: 225-232, 2001. Accessed Online July 

2012. http://www.sciencedirect.com/science/article/pii/S0147651301920998

Reash et al., (1999): Ecotoxicological assessment of bluegill sunfish inhabiting a selenium-enriched fly 

ash stream. Reash, R.J., T.W. Lohner, K.V. Wood, and V.E. Willet. In: Hanshel, D.S., M.C. Black, and 

M.C. Harrass (editors), Environmental Toxicology and Risk assessment: Standartization of Biomarkers 

for Endocrine Disruption and Environmental Assessment, Volume 8. American Society for Testing and 

Materials, Conshohocken, Pennsylvania, 1999.

AEP (2014): Notice of Appeal and Request for Stay, Appalachian Power Company, dba AEP v. Division 

of Water and Waste Management, West Virginia Department of Environmental Protection, submitted to 

the West Virginia Environmental Quality Board, August 6, 2014. Accessed Online August 2014.

14-15-EQB - Environmental Quality Board

West Virginia Rivers Coalition et al., (2014): Consent Decree, West Virginia Rivers Coalition, West 

Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, and Sierra Club v. Appalachian 

Power Company d/b/a/ American Electric Power, in the United States District Court for the Southern 
I. CCR Proven Damage Cases December 2014

191

District of West Virginia at Huntington, Case 3:14-cv-24237, August 1, 2014. Accessed Online August 

2014.

Access through: InsideEPA.com (2014): Settlement Agreement on Selenium Discharges, August 6, 

2014.

http://insideepa.com/201408062478749/EPA-Documents/Text-Document/cwa-pacts-showenvironmentalists-bid-to-raise-bar-for-power-plant-elg/menu-id-96.html

PR36. WEPCO Cedar-Sauk Landfill, Cedarburg, Ozaukee County, Wisconsin

Type: Sand and Gravel Pit. 

Brief Description: This unlined, 25-acre landfill,788 located in a former sand and gravel pit, received 

about 650,000 cubic yards of fly and bottom ash from the Wisconsin Electric Power Company 

(WEPCO) Port Washington Power Plant789 between 1969 and 1979.790 The landfill was located over 

shallow groundwater in highly permeable (10-3to 10-4cm/sec) media, a hummocky end moraine and 

glacial outwash deposits from the last Pleistocene glacial advance of the Lake Michigan Lobe.791 The 

underlying unconsolidated glacial sediments generally consist of permeable, well sorted sand and gravel 

deposited by meltwater streams near the ice margin. The sand and gravel mining operation removed the 

unconsolidated material over the underlying Silurian dolostone of the Niagaran Series, considered a 

regional aquifer that is used by private water supply wells in the Town. This allowed waste to be placed 

directly on the fractured and dissolved dolostone knob beneath the landfill.792

 

788 Ash-disposal was state-permitted, under License # 0603 (Zilmer and Fauble, 2004). EPRI (2001) states that the 

site property encompassed an area of 55 acres (There, Fig. 2-1), with 28 acres used for disposal of coal and bottom 

ash from an off-site power plant. The ash was covered with soil as individual cells were filled. This soil cover was 

0.2 to 2.7 feet thick and had texture ranging from sand to clay.

789 Built in 1935, the Port Washington Power Plant had four coal-fired dry-bottom arc-firing units and one gas 

turbine with total capacity of 340 MW. The coal units became operational in 1935, 1943, 1948, and 1949 and burned

bituminous coal (EPRI, 2001). The plant's coal-fueled units were replaced with two, 545 MW generators, the first –

in 2005, and the second – in 2008 (WE, 2014). 

790 According to EPRI (2001), the site was active between 1969 and 1977. According to 

http://dnrmaps.wi.gov/SL/Viewer.html?Viewer=RR+Sites&runWorkflow=ZoomToBRRTS&brrtsid=35206, the

landfill is located about 1,800 feet southwest of the intersection of Cedar Sauk Road and Maple Road (NW 1/4 of 

the NE 1/4 of Sec 02, T10N, R21E), about 5.4 mile as the crow flies WSW of the Port Washington Power Plant. 

According to EPRI (2010), the Cedar Sauk ash fill property contains land that is included in the Mole Creek Primary 

Environmental Corridor.

791 The Oak Creek Formation (Mickelson and Syverson, 1997), and see also Young and Batten (1980, Fig. 4).

792 According to Zilmer and Fauble (2004), this massive dolomitic limestone has a highly irregular erosional surface 

and contains numerous fractures and solution features. Cross-sections based on borings near and beneath the landfill 

area show that the landfill was sited on a bedrock knob of Niagaran dolostone. North and east of the bedrock high, 

towards Mole's Creek, the sand and gravel outwash deposits thicken from absent to 25 feet thick beneath the landfill 

to over 50 feet thick near the creek.

There are two major aquifers present at the site: the upper sand and gravel outwash deposits and the lower, 

Niagaran dolostone. The sand and gravel aquifer is generally unconfined and forms the water table. To the east of 

the landfill, near Mole's Creek, the sand and gravel unit is underlain by silty clay to clayey silt glacial till unit. 

Beneath the landfill this unit is either absent due to mining or directly underlain by bedrock. Beneath the landfill and 

elsewhere along the bedrock knob, groundwater is in contact with the upper sand and gravel aquifer and the water 

table can occur within both units. In the landfill’s area, the probability of a well to yield 100-500 gl/minute is good 

(Young and Batten, 1980, Fig. 11). The quality of the Niagara aquifer’s water in the area is one of the best in 

Ozaukee County, with sulfate levels below 25 mg/L, TDS around 350 mg/L, and hardness of about 300 mg/L 
I. CCR Proven Damage Cases December 2014

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Groundwater within both the sand and gravel aquifer and the Niagaran bedrock flows from the west to 

the east and southeast and likely discharges to wetland areas 0.2 miles to the east.793 Mole's Creek is 

considered a groundwater discharge point for shallow groundwater that flows from the landfill area. 

There are two residences located between the CCR fill and this wetland northeast of the site that may 

have private wells. However, there are no exceedances in on-site wells between the CCR fill and these 

potential receptors. The off-site exceedances occur in monitoring wells to the southeast.794

Impact: Sometime after closure, the water table rose, saturating portions of the ash fill.

795 With 

Wisconsin Department of Natural Resources’ (WDNR) approval, WEPCO installed and began 

monitoring a series of monitoring wells in late 1978. After closure of the facility, ground water 

monitoring revealed onsite groundwater exceedance of the MCL for selenium, the State standard for 

boron, and the secondary MCL for sulfate.796 The boron and sulfate plume extended southeast from the 

central portion of the ash fill area to the creek (see EPRI, 2001, Fig. 3-2 and Fig. 3-3), while selenium 

was limited to three wells at the down-gradient edge of the ash fill area and one well about 200 feet 

down-gradient, near the down-gradient edge of the ash fill area.797 In 1980, vegetation monitoring in a 

 

(Young and Batten, ibid, Figs. 16-18). For Ozaukee County groundwater susceptibility, depth to water table, 

bedrock type, depth to bedrock, and soil deposits maps, see USGS (2007).

793 Groundwater flow is primarily through the sand and gravel unit and dolomite bedrock. These formations are 

hydraulically connected in areas where the lower silt and clay is absent. The predominant flow direction is east 

(EPRI, 2001, Fig. 2-5). The hydraulic conductivity of the sand and gravel was approximately 2.6 x 10-3cm/sec. Slug 

test hydraulic conductivity values ranged from 2 x 10-4cm/sec to 2 x 10-2cm/sec in the sand and gravel and from 4 x 

10-4to 7 x 10-4cm/sec in the bedrock. Assuming an effective porosity value of 0.20, a hydraulic conductivity of 2.6 

x 10-3cm/sec and a hydraulic gradient of 0.020 from EPRI (2001) Fig. 2-5, groundwater flow velocity in the sand 

and gravel beneath the ash fill area is about 270 ft/yr, suggesting a four-year travel time for advective migration 

from the upgradient edge of the fill area to the down-gradient edge. Hydraulic gradient decreases to 0.008 downgradient of the ash fill area as the sand and gravel aquifer thickens, resulting in a groundwater flow velocity of about 

110 ft/yr. This groundwater flow velocity suggests a five- to six-year advective travel time from the down-gradient 

edge of the ash fill area to the creek. Comparison of mapped base of ash elevations to groundwater table elevation 

suggests that there are areas where base of ash is less than 5 feet above the water table. However there is no direct 

evidence of saturated ash at this site.

794 Zilmer & Fauble, ibid.

795 According to EPA (2007). However, according to EPRI (2010), a site-specific analysis performed by EPRI found 

less than 5 feet of separation but no direct evidence of saturation.

796 According to WDNR’s comment to the docket: EPA-HQ-RCRA-2009-0640-6416 (Table 2), contaminant 

concentrations in monitoring well W-4 were as follows: boron ranged between 11 and 186 mg/L; selenium: 1-

980μg/L; and sulfate: 520-1,923 mg/L. These levels are well above the Wisconsin Enforcement Standard (ES) of 

0.96 mg/L for boron and 250 mg/L for sulfate. In addition to selenium and boron exceedances, Cherry et al. (2000), 

when mentioning constituents in down-gradient monitoring wells that exceeded federal standards for drinking water 

or protection of aquatic life, cite sulfate concentrations of up to 2,300 mg/L, and TDS concentration of up to 3,290 

mg/L.

797 According to EPRI (2001, Section 3 and Appendix A), the boron and sulfate plume, delineated by boron 

concentrations greater than 1 mg/L and sulfate concentrations greater than 100 mg/L, extended to a creek roughly 

600 feet east of the ash fill area.

Groundwater quality results for the entire monitoring period (1978 to 2001) indicate that pH of all water 

samples was slightly acidic to slightly alkaline (6.1 to 8.5). Median concentrations of boron, sulfate, and sodium 

were significantly higher in down-gradient wells than in up-gradient wells. In addition, concentrations of calcium, 

magnesium, potassium, and selenium were higher than background in some down-gradient wells. Median boron 

concentrations in downgradient groundwater were as high as 54 mg/L at W-4 (EPRI, 2001, Fig. 3-2) and median 

sulfate concentration was as high as 800 mg/L at W-4 (EPRI, 2001, Fig. 3-3). As of 1984, a boron and sulfate plume 

had migrated southeast as far as W-15, and elevated boron concentrations in surface water at SW-2 suggest that the 

plume had migrated as far as the creek.

Most down-gradient wells had low to non-detectable concentrations of selenium; therefore the median 

selenium concentration in down-gradient groundwater was the same as in up-gradient groundwater (EPRI, 2001, 
I. CCR Proven Damage Cases December 2014

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wetland immediately east of the fill area found stress characteristic of boron toxicity. Leaf tissue samples 

had boron concentrations of 300 to 1,600 ppm compared to 7 to 61 ppm in healthy plants from other 

areas of the site.

Previous Basis for Consideration798: Scientific: selenium in offsite (?) ground water exceeded the 

(health-based) primary MCL, and there was clear evidence of vegetative damage. Administrative: The 

State required remedial action.

Resolution: In response to the groundwater contamination findings, the company performed 

investigations of hydrogeology and groundwater quality, followed by remedial actions. The facility has 

undergone two remediation efforts since ash disposal ceased in 1977. Remediation efforts began in 1982 

with placement of a cap consisting 2 feet of silty clay soils from a nearby borrow area over the existing 

soil cover. Following completion of the cap, in 1983, WEPCO proposed a groundwater mitigation plan 

to the WDNR consisting of three groundwater extraction wells to be placed down-gradient of the fill 

area.799 The extraction system was designed to hydraulically contain groundwater from flowing beyond 

the downgradient edge of the ash fill area, thereby preventing eastward migration of boron from the ash 

fill area to the wetland where vegetation stress was observed. The system began operating in September 

1984; after five successful years,800 the levels of boron and sulfate contaminants began to rise again due 

to decreasing extraction well efficiency; and by 1997, concentrations in most wells were near preremediation levels.801 Based on groundwater modeling of the system, WEPCO concluded that the 

capture zone of the three extraction wells was inadequate to capture all groundwater contamination 

migrating from the landfill. 

To address this problem, in 1997 WEPCO installed an engineered cap over the landfill. In preparation 

for the cap upgrade, the old cap was stripped of vegetation and topsoil, fine-graded, rolled, and cleared 

of any rocks or soil clods greater than 2 inches in diameter.802 The engineered cap, the completion of 

which occurred in October 1997, consisting of (from bottom to top) recompacted clay, 30-mil PVC 

geomembrane, a rooting layer with two-feet of general fill, and six inches of topsoil. The groundwater 

extraction system was permanently abandoned in 1997.803 Judging from the resulting rapid drop of boron 

and sulfate levels in 2003, to lows of 14 mg/L and 262 mg/L, respectively , it is evident that decreasing 

infiltration through the waste mass by capping has effectively reduced contaminant concentrations 

 

Table 3-3a). However, four down-gradient monitoring wells (W-3, W-3A, W-4, and W-10) had selenium 

concentrations higher than the MCL of 0.05 mg/L (EPRI, 2001, Table 3-3b) prior to 1984. Pre-remediation selenium 

concentrations were highest at W-4, and routinely exceeded 0.05 mg/L, while concentrations in the other three wells 

exceeded that value in less than 20 percent of the samples.

798 EPA (2007).

799 According to EPRI (2001), the wells pumped at a rate of 44 to 109 m3

/day.

800 According to EPRI (2001), this system initially caused boron and sulfate concentrations within the central portion 

of the plume to decrease by 50 to 80 percent.

801 While selenium in W-4 was generally elevated, with levels as high as 980 μg/L, before the site was closed, the 

selenium concentrations dropped sharply after the site was closed and the relief well system was operational in 

1984: within 3 months (September, 1984 to December, 1984), the selenium levels dropped from 240 μg/l to 12 μg/L 

and they never recovered. Zilmer and Fauble (2004) claim that these results suggest that at least at this site, selenium 

does not stay in solution as readily as either sulfate or boron. According to EPRI (2001), it is possible that the 1982 

cap changed redox conditions in the ash, favoring the reduced species of selenium (selenite), which is less mobile 

than the oxidized species (selenate), while the groundwater extraction system captured most of the mobile selenium 

in groundwater. In any case, the 1982 cap and the groundwater extraction system remediation effectively removed 

selenium from groundwater at this site.

802 EPRI (2001).

803 EPRI (2001).
I. CCR Proven Damage Cases December 2014

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down-gradient of the landfill.804 Groundwater quality at the site is monitored semi-annually using a 

network of 26 monitoring wells. CCR indicator concentrations are decreasing or stable in all except three 

of the 26 active monitoring wells.805

ICF (2010) Rationale: Proven Damage. <Documented study of ecological impact in adjacent wetland 

due to CCR contamination, including stressed vegetation and bioaccumulation in plant tissues of boron.>

Postscript: In its comment to the docket, WDNR,

806 based on a detailed study, concurred with the 

classification of this damage case.

807

References

EPA (2007): Coal Combustion Waste Damage Case Assessments, Case #16, docket ID EPA-HQRCRA-2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #16. ICF, 10/2010.

EPRI (2001): Evaluation of Remedial Actions at an Unlined Coal Ash Landfill: CS Site. EPRI Report 

1005214, Technology Review, December 2001. Cosponsor Wisconsin Electric – Wisconsin Gas. 

Accessed Online September 2014.

http://www.epri.com/abstracts/Pages/ProductAbstract.aspx?ProductId=000000000001005214

EPRI (2010): Damage Case Report, V. 2: Case Summaries, EPRI, September 2010. Accessed Online 

July 2012.

http://www.epri.com/search/Pages/results.aspx?k=Evaluation%20of%20Coal%20Combustion%20Produ

ct%20Damage%20Cases

Zilmer and Fauble (2004): Groundwater Impacts from Coal Combustion Ash Disposal Sites in 

Wisconsin, Pub-Wa 1174 2004, Michael Zillmer and Philip Fauble, Wisconsin Dept. of Natural 

Resources Waste & Materials Management Division. Accessed Online July 2012.

http://dnr.wi.gov/files/PDF/pubs/wa/WA1174.pdf

Cherry et al., (2000): Review of the Global Adverse Environmental Impacts to Ground Water and 

Aquatic Ecosystems from Coal Combustion Wastes. Donald S. Cherry, Rebecca J. Currie, and

David J. Soucek, Biology Department, Virginia Tech., Blacksburg, Virginia. Prepared for Hoosier 

Environmental Council and Citizens Coal Council, Indianapolis, Indiana, March 28, 2000. Accessed 

Online August 2012.

http://www.citizenscoalcouncil.org/wp-content/uploads/2012/07/A-REVIEW-OF-THE-ADVERSEENVIRONMENTAL-IMPACTS-OF-COAL-COMBUS.htm

 

804 For changes in groundwater concentrations of boron and sulfate by the water extraction system prior to the 

installation of the upgraded cap, see Figs. 3-8, 3-9, 3-10, and 3-11 in EPRI (2001). For concentration changes of the 

same constituents after the upgraded cap was installed, see Figs. 3-13 and 3-14 in EPRI (2001). According to 

http://dnr.wi.gov/botw/GetActivityDetail.do?adn=0246000713&siteId=1624800&crumb=1&search=a, Site

remediation activity closed in Oct. 2011, and the Landfill was then transferred to DNR’s Solid Waste Program.

805 EPRI (2010).

806 WDNR’s comment to the proposed CCR rule: EPA-HQ-RCRA-2009-0640-6416, and Zilmer and Fauble (2004).

807 USWAG, in its comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0432 (Appendix C), requested 

that EPA identify the Cedar Sauk Site in the docket as a site where the previously identified “proven damage” has 

been resolved to the satisfaction of the State through implementation of corrective measures.
I. CCR Proven Damage Cases December 2014

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USGS (2007): Groundwater Contamination Susceptibility Map, Ozaukee County/Protecting Wisconsin’s 

Groundwater Through Comprehensive Planning. Based on: Schmidt, R.R., 1987, Groundwater 

contamination susceptibility map and evaluation: Wisconsin Department of Natural Resources, 

Wisconsin’s Groundwater Management Plan Report 5, PUBL-WR-177-87, 27 p. Accessed Online 

September 2012.

http://wi.water.usgs.gov/gwcomp/find/ozaukee/susceptibility.html

Young and Batten (1980): Ground-Water Resources and Geology of Washington and Ozaukee Counties, 

Wisconsin, H. L. Young and W. G. Batten, U. S. Geological Survey in Cooperation with Wisconsin 

Geological and Natural History Survey, Information Circular Number 38, 1980. Accessed Online November 

2013.

http://wisconsingeologicalsurvey.org/pdfs/IC38.pdf

Mickelson and Syverson (1997): Quaternary Geology of Ozaukee and Washington Counties, Mickelson, 

D., and Syverson, K., Wisconsin. Wisconsin Geological and Natural History Survey Bulletin 91. 56 p. 

Accessed Online November 2013.

http://wisconsingeologicalsurvey.org/gis.htm, Ozaukee.

WE (2014): Wisconsin Energy Corporation - History. Accessed Online August 2014.

http://search.weenergies.com/search?q=cache:YNv3tfCa8i8J:www.wisconsinenergy.com/aboutus/history.htm+port+was

hington&access=p&output=xml_no_dtd&site=wisconsin_energy_all&ie=UTF8&client=wec_01&proxystylesheet=wec_01&oe=UTF-8

PR37. Columbia Energy Center, Alliant Energy – Wisconsin Power and Light Company, 

Pardeeville, Columbia County, Wisconsin

Type: Surface Impoundments.

Background and Description: The Columbia Power Station808 has three currently active ash 

impoundments on site, all officially commissioned in 1975, though plant operations and coal combustion 

residual (CCR) storage and discharge began in 1974. The three unlined ponds consist of an 8.5-acre 

primary ash pond (PAP), a 16-acre secondary ash pond (SAP), and a 1-acre polishing pond (PP). There 

is also a 500-acres cooling pond, and a Landfill Storm Water Pond Impoundment (LSP).809 Since the 

plant’s opening in 1975, CCRs have been slurried into the series of the three impoundments810 and 

 

808 Columbia Energy Center is a base-load, subbituminous coal-fired, electrical power station located southwest of 

the town of Pardeeville, Wisconsin, close to the left bank of the Wisconsin River. The Plant has two generation units 

of 550 MW each that came online in 1975 and 1978 (Alliant Energy’s 2011 Annual Report: http://phx.corporateir.net/phoenix.zhtml?c=71431&p=irol-irhome).

809 According to GZA GeoEnvironmental (2011), The Landfill Storm Water Pond Impoundment (LSP) was 

commissioned in 1984 in conjunction with the on-Site ash landfill. The LSP is a lined (HDPE, with permeability of 

10-10 cm/sec) earthen embankment structure and stores storm water runoff and sediments from the open cells of the 

ash landfill. The LSP receives fly ash, bottom ash, and economizer ash with the storm water runoff from the ash 

landfill. Water that collects in the LSP is removed by evaporation.

According to WI DNR (2013), the landfill is an active monofill with a capacity of over 500,000 cubic yard 

(License #2325, DNR Facility ID 111042140). 

810 According to GZA (ibid), prior to 2004, most solids would settle in the PAP and the remaining solids would be 

discharged with water to the SAP. Since 2004, the solids settle in the PAP and the pump house on the northeast 
I. CCR Proven Damage Cases December 2014

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sulfuric acid added to reduce the pH from over 10 to 8 or lower, as required by the discharge permit. The 

effluent is then discharged into a stream which subsequently flows into Rocky Run Creek, a third-order 

tributary of the Wisconsin River.811 The addition of acid causes barium, aluminum, and chromium to 

precipitate into a floc that is discharged with the other effluents. 

Impact and Damage Claims: EIP (2010a) indicates that effluent discharges from the impoundments 

damaged stream habitat and had severe impact on populations of aquatic communities downstream from 

the discharge point. A number of studies undertaken between 1974 and 1980 by the US EPA’s 

Environmental Research Laboratory and the University of Wisconsin-Madison’s Institute for 

Environmental Studies812, 813 indicated that along with increased total dissolved and total suspended 

solids (TDS and TSS, respectively), a number of heavy metals had increased concentrations 

downstream. One of the studies identified contaminants in the ash pond drainage with exceedances of 

WQC over the EPA’s Ambient Water Quality Criteria (AWQC), including cadmium and copper.814

 

The studies documented a sequence of macro-invertebrate community responses: populations of benthic 

macro-invertebrates and fish were dramatically reduced for at least 3.5 km downstream,815 as were 

microbial measures of aquatic ecosystem function and overall health. Some species of macroinvertebrates were totally eliminated four months after effluent discharge started in 1974. Crayfish 

exhibited markedly elevated tissue concentrations of selenium, zinc, and iron as well as impaired 

metabolic rates in areas below the discharge.

After loss of most macro-invertebrates in 1977 downstream from the effluent discharge point, the 

community recovered by 1980, although a shift in dominance to more tolerant species, lower total 

abundance, and a slight decline in diversity suggest continued sub-lethal influence of the coal ash 

effluent. Variations of the severity of stress suggested by these changes was attributable to a series of 

generating station activities related to coal treatment, effluent discharge characteristics, and dredging of 

accumulated floc in the upstream drainage ditch. In 1977, when the downstream monitoring point 

reached a maximum conductivity, the biota were the most impacted in comparison to an upstream 

 

portion of the impoundment returns water to the plant for reuse and/or treatment and disposal per the Wisconsin 

Pollutant Discharge Elimination System (WPDES) permit. Solids recovered from the PAP are recycled for

beneficial use or disposed of in the active dry ash landfill on Site. The SAP contains fly ash, bottom ash, economizer 

ash and other products that are transported in the discharge water from the PAP. Since 2004, precipitation that 

collects in the SAP infiltrates into the ground or evaporates. Prior to 2004, the PP received water and unsettled solids 

from the SAP. Any remaining solids were allowed to settle and water was discharged from the PP into a drainage 

ditch via a spillway. Water travelled through the ditch and was eventually discharged off-Site under WPDES Permit 

Number WI0002780. The PP contains fly ash, bottom ash, and economizer ash and other products that were 

transported in the water from the SAP. Similar to the SAP, since 2004, precipitation that collects in the PP infiltrates 

into the ground or evaporates. For a location map and an aerial photo of the Plant’s disposal units, see GZA (ibid) 

Figures 1 and 2, respectively.

811 The plant has a non-major National Pollutant Discharge Elimination System (NPDES) permit No. WI0002780, 

and is also regulated under a state WPDES permit.

812 Magnuson et al., (1980).

813 Webster et al., (1986).

814 The range of cadmium concentrations of 0.0024 to 0.0029 mg/L, exceeded USEPA’s recommended WQC of 

0.002 mg/L for acute exposure, and was around 10 times USEPA’s WQC of 0.00025 mg/L for chronic exposure. 

The concentrations may have also exceeded Wisconsin’s WQC for chronic exposure in surface waters of 0.00143 to 

0.00382 mg/L, depending on hardness. The range of copper concentrations of 0.004 to 0.043 mg/L likely exceeded 

EPA’s WQC criterion of 0.013 mg/L for acute exposure and 0.009 mg/L for chronic exposure (based on 100 mg/L 

of hardness) and depending on hardness and pH, probably exceeded Wisconsin’s acute WQC of 0.00807 to 0.0298 

mg/L and chronic WQC of 0.00187 to 0.00572 mg/L, which apply to all surface waters. 

815 Lemly (2010) estimated the monetized value of the damage at $240,000. 
I. CCR Proven Damage Cases December 2014

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reference site, and when process changes reduced the conductivity of the effluent in 1980, the biota 

downstream had returned (though modified in relative abundance) to pre-discharge levels. The effluent 

response threshold (1,000 μmhos conductivity) accurately predicted the recovery of ash pond drain 

macro-invertebrates when effluent concentrations fell below the threshold. 

Evaluation Against Proven Damage Criteria816

Resolution: No regulatory actions reported in response to the 1970s violations. The results of the 

ecological studies led to modification of methods for treating coal to increase the efficiency of the 

electrostatic precipitators and reduce the harmful effects of the impoundments’ effluents. Subsequent 

changes to the power plant operations have led to significant restoration of the receiving stream aquatic 

environment. This included modifications to the Power Plant’s operations to reduce flocculants in the 

impoundments and conductivity in ash pond discharges, elimination of wet sluicing of fly ash in favor of 

dry fly ash management, and re-use of water to the point that there has not been a wastewater discharge 

from the ash ponds since 2004.817 

A 1984 study revealed that polluted groundwater containing elevated concentrations of boron, sodium, 

and sulfate was moving off-site and into wetlands adjacent to the Wisconsin River. The elevated sodium 

was attributed to trona (Na2CO3), used to condition fly ash to enhance sulfate removal from flue gas. A 

2004 report showed that arsenic, selenium, lead, and manganese were leaching at concentrations toxic to 

aquatic life. Although the ash ponds are now closed, they are unlined and continue to leach contaminants 

into groundwater. The affected wetlands have been identified as a key natural resource feature of lower 

Rocky Run Creek and the Wisconsin River.

In February 2003, WP&L’s Columbia Energy Center received a Notice of Violation from the Wisconsin 

DNR for exceeding limits in its Wisconsin Pollutant Discharge Elimination System (WPDES) permit, 

which requires the Plant to sample its ash pond discharge and sanitary wastewater plant discharge for 

various parameters, including acute and chronic toxicity. The WPDES permit issued in 1998 required the 

Criteria Evaluation

Criterion 1: Documented exceedances of primary 

maximum contaminant levels (MCLs) or other 

health-based standards measured in groundwater at 

sufficient distance from the waste management unit 

to indicate that hazardous constituents have 

migrated to the extent that they could cause human 

health concerns

 None

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage to 

human health or the environment (e.g., ecological 

damage)

 Several studies undertaken in the late 1970s and 

mid 1980s determined that effluent discharge from 

the CCR impoundments had an impact on 

downstream habitats and caused considerable 

damage to populations of macro-invertebrates. 

Criterion 3: Where there has been an administrative 

ruling or court decision with an explicit finding of 

specific damage to human health or the 

environment

 None

 

816 ICF (2010a).

817 Alliant Energy Corporate Services’, Inc. comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-

0392-0290. 
I. CCR Proven Damage Cases December 2014

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Plant to identify what was causing the toxicity in its discharge through an evaluation and to develop a 

reduction plan. The evaluation was performed and the Plant developed a reduction plan that identified 

carbon dioxide injection as the treatment to reduce the aluminum concentrations. The Wisconsin DNR 

did not approve this method of treatment and directed the Plant to revise the reduction plan, at which 

time WP&L’s Columbia began evaluating a number of treatment alternatives and undertaking a physical 

evaluation. In November 2003, WP&L submitted a progress report to the Wisconsin DNR for the ash 

pond toxicity discharges along with plans for the sanitary wastewater treatment plant. In December 

2003, a construction permit for the sanitary wastewater treatment plant was submitted to the Wisconsin 

DNR with an anticipated construction start date in spring 2004.818 According to GZA (ibid), the 

wastewater plant has been in operation since 2004.

ICF (2010a) Rationale: Proven Damage. <Scientific studies indicated documented ecological damage 

in the form of population damage downstream from the CCR effluent discharge.>

Postscript: USWAG819 notes that the USEPA classified this site as “Indeterminate” in EPA (2007) due 

to insufficient information; however, upon reassessment of the existing evidence as presented in the cited 

studies, the nexus between the ecological damage and CCR management at the Columbia Energy Center 

Power Plant clearly qualifies the Columbia Energy Center impoundments as an ecological damage case.

References

EIP (2010a): In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their 

Environment, Thirty-Nine New Damage Cases of Contamination from Improperly Disposed Coal 

Combustion Waste, Case 38. The Environmental Integrity Project, EarthJustice and Sierra Club, August 

26, 2010. 

http://www.environmentalintegrity.org/news_reports/08_26_10.php

ICF (2010a): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix C, Case 38. ICF, 10/2010.

US EPA, Facility Registry System, Facility Detail Report, WPL – Columbia Energy Center. Accessed 

Online July 2012. 

http://iaspub.epa.gov/enviro/fii_query_dtl.disp_program_facility?p_registry_id=110000420385

Lemly (2010): A White Paper on Environmental Damage from Coal Combustion Waste: The Cost of 

Poisoned Fish and Wildlife, A. Dennis Lemly, EPA Docket ID No. EPA–HQ–RCRA–2009–0640, 

December 15, 2010. Accessed Online July 2012.

http://prairierivers.org/wp-content/uploads/2012/03/Lemly-2010-Environmental-Damage-fromCCW.pdf 

Magnuson (1980): Magnuson, J. J., Forbes, A. M., Harrell, D. M. and Schwarzmeier, J. D. 1980. 

Responses of Stream Invertebrates to an Ash Pit Effluent, Wisconsin Power Plant Impact Study. EPA600/ 3-80-081, U.S. Environmental Protection Agency, Cincinnati, OH. Accessed Online July 2012. 

http://books.google.com/books?id=UdG2efq19PcC&ots=r04mkckWNh&dq=Responses%20of%20Strea

m%20Invertebrates%20to%20an%20Ashpit%20Effluent%2C%20Wisconsin%20Power%20Plant%20Im

pact%20Study.&pg=PR1#v=onepage&q&f=false

 

818 EDGAROnline (2004).

819 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0211.
I. CCR Proven Damage Cases December 2014

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Webster et al (1986): Webster, K.E., Anne M. Forbes, and John J. Magnuson. 1986. An Evaluation of 

Environmental Stress Imposed by a Coal Ash Effluent. EPA/600/S3-85/045. U.S. Environmental 

Protection Agency, Duluth, MN. Accessed Online July 2012. 

http://nepis.epa.gov/Exe/ZyNET.exe/2000TMJ7.txt?ZyActionD=ZyDocument&Client=EPA&Index=19

81%20Thru%201985&Docs=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=

&TocEntry=&QField=pubnumber%5E%22600S385045%22&QFieldYear=&QFieldMonth=&QFieldDa

y=&UseQField=pubnumber&IntQFieldOp=1&ExtQFieldOp=1&XmlQuery=&File=D%3A%5CZYFIL

ES%5CINDEX%20DATA%5C81THRU85%5CTXT%5C00000010%5C2000TMJ7.txt&User=ANONY

MOUS&Password=anonymous&SortMethod=h%7C-

&MaximumDocuments=10&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display

=p%7Cf&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page’

EDGAROnline (2004): Interstate Power & Light co 10-K SEC Filing, filed on 3/11/2004. Accessed 

Online June 2012.

http://sec.edgar-online.com/interstate-power--light-co/10-k-annual-report/2004/03/11/Section4.aspx

GZA GeoEnvironmental (2011); Final Report Round 7 Dam Assessment - Wisconsin Power & Light 

Columbia Generating Station Primary Ash, Secondary Ash, Polishing & Landfill Stormwater Ponds, 

Pardeeville, Wisconsin, GZA Geoenvironmental Inc., June 2, 2011. Accessed Online January 2014.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/alliant-columbia-final.pdf

WI DNR (2013): Solid Waste Landfills Licensed in Wisconsin, Licensed for Year 2014 (Oct. 1, 2013 -

Sept. 30, 2014), State of Wisconsin Department of Natural Resources. Accessed Online February 2014.

http://dnr.wi.gov/topic/waste/documents/faclists/wislic_swlandfills_bycnty_withwaste.pdf

PR38. WEPCO Highway 59 Landfill, WE Energies, Waukesha, Waukesha County, 

Wisconsin

Type: Sand and Gravel Pit.

Brief Description/Impact: The unlined,820 approximately 30-acre ash landfill is located in a former 

gravel quarry821 that received an estimated 500,000 cubic yards of fly ash and bottom ash from the 

Valley Power Plant between 1969 and 1978.822 The soil underlying the site comprises a variety of 

unconsolidated glacial deposits from 90-150 feet in thickness, including highly permeable sand and 

gravel units inter-layered with a silty-clay unit. The lower sand and gravel unit is in direct contact with 

the weathered bedrock north of the site. The underlying bedrock is a Silurian-age Niagara Dolomite, 

which serves as the primary aquifer for the City of Waukesha.823 The site area lies in a regional 

groundwater recharge area. Downward gradients from the glacial aquifer to the dolomite occur at nearly 

 

820 EPRI (2010). 

821 The landfill is located at the southeast corner of the intersection of State Highway 164 and State Highway 59 in 

the Town of Waukesha. According to EPA-HQ-RCRA-2009-0640-6416 (Table 2), License #0918.

822 The Class F ash deposited in this landfill has pozzolanic properties but was not self-cementitious. The Valley 

Power Plant was constructed along the Menomonee River in Milwaukee in 1968 as a combined, 280 MW powersteam facility. In August 2012, WE announced plans to convert the Plant’s fuel source from coal to natural gas. On 

March 17, 2014, the Public Service Commission of Wisconsin (PSCW) issued a Certificate of Authority approving 

the project (WE Energies, 2014).

823 Zillmer and Fauble (2004). For Waukesha County groundwater susceptibility, depth to water table, bedrock type, 

depth to bedrock, and soil deposits maps, see USGS (2007).
I. CCR Proven Damage Cases December 2014

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all nested well locations. A groundwater divide on the northwestern part of the site results in flow 

primarily to the north, west, and south to the dolomite. Horizontal flows in the dolomite aquifer are in 

the range of 35 to 60 feet/year to the west and north and less than 25 feet/year to the south.824

Waste thickness ranged from less than 10 feet to more than 40 feet. Approximately 7,500 cubic yards of 

ash was deposited below the water table in the pond on the northern portion of the site,825 and 30,000 

cubic yards - in the southern portion of the site behind an earthen dike constructed on clay till. 

Groundwater monitoring between 1988 and 1998 found sulfate, boron, manganese, chloride, and iron 

above the State’s Enforcement Standards (ES) and arsenic above the State’s Preventive Action Level 

(PAL) in nearby private wells.826, 827 Other down-gradient monitoring wells showed sulfate, boron, iron, 

and manganese in excess of the ES and selenium and chloride in excess of PALs. A recent WDNR 

data828 on contamination in the most impacted wells differ somewhat from the preceding.

Resolution: Groundwater monitoring around the landfill was initiated 1970s. WEPCO initiated a 

hydrological investigation in 1988, which included the installation of 13 additional monitoring wells and 

piezometers and the sampling of four private water supply wells adjacent to the site. State agency staff 

considered this site one of the most seriously affected coal ash sites in the State.829 The State required a 

continuation of monitoring at this closed facility in 1982 and an investigation into ground water 

contamination in 1994, neither under a Consent Order.830 Between 1995 and 1998, WEPCO submitted a 

series of reports assessing the degree and extent of the contamination from the landfill, including an 

 

824 According to the Supplemental ECA (EPA-HQ-RCRA-2012-0028-0093, Attachment A-1).

825 According to the Supplemental ECA (EPA-HQ-RCRA-2012-0028-0093, Attachment A-1), there were about 30 

feet (44,000 cubic yards) of unsaturated ash overlying the saturated ash.

826 According to the Supplemental ECA, a groundwater plume characterized by high concentrations of sulfate (1,000 

mg/L) and boron (40 mg/L) emanates from the saturated ash area on the northern end of the site. The plume 

migrates to the west downward in the glacial aquifer and enters the dolomite aquifer about 350 feet west of the 

saturated ash area. Once in the dolomite, the plume spreads laterally to the south, north, and west. The extent of the 

plume is greater in the dolomite than in the glacial aquifer. Elevated concentrations of boron and sulfate in dolomite 

wells were found approximately 1,100 feet north and 1,100 feet west of the ash fill. Notably, in the three nested 

wells shown in Figure 3-6 that are screened both in the glacial and dolomite aquifer, sulfate concentrations are 

higher in the dolomite aquifer than in the glacial aquifer. A total of 12 private water supply wells around the site 

(nine completed in dolomite) were found to have at least slightly elevated boron concentrations. Groundwater 

modeling indicated that the boron plume would continue to spread in the dolomite aquifer under current conditions.

827 Wisconsin Enforceable Standards are enforceable benchmarks to identify potential risk concerns; Preventative 

Action Limits are approximately 10% of MCLs and not comparable risk-based standards. In their comment to the 

August 2013 NODA docket: EPA-HQ-RCRA-2012-0028-0093, Citizens Coal Council and Labadie Environmental 

Organization cite WDNR files to indicate that five offsite residential wells and one business well had been impacted.

828 According to the WDNR comment to the docket: EPA-HQ-RCRA-2009-0640-6416 (Table 2), arsenic 

concentrations ranged between: 2-5μg/L, boron: 15-50ppm; sulfate: 836-11,70ppm; and manganese: 490-670μg/L. 

Cherry et al. (2000) cite also an exceedance of TDS (1720 mg/L). In addition, according to the above cited comment 

to the August 2013 NODA docket: EPA-HQ-RCRA-2012-0028-0093, levels of molybdenum were recorded in the 

impacted wells as high as 7 mg/L, 35 times higher than EPA’s Drinking Water Equivalent Level (DWEL) and 175 

times higher than EPA’s Life-time Health Advisory for consumption of molybdenum in drinking water.

829 Regardless of the presence of a closed, originally unregulated municipal landfill and a closed foundry waste 

landfill adjacent to the coal ash landfill. According to Zillmer and Fauble (ibid), the migration of CCR contaminates 

into the deep aquifer may have been hastened by a private water supply well (WJAC) near the western edge of the 

ash fill. The business operating the well may have been pumping it on a regular basis to wash the numerous cars on 

their sales lot. This well was the first impacted private well near the landfill. The concentration of sulfates made the 

water undrinkable and bottled water was supplied up until the time the well was abandoned and the facility placed 

on city water.

830 An investigation performed by WE in 1988 found elevated levels of sulfate and boron in groundwater 

immediately west of the site. This was confirmed by an ECA (1994/95). 
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environmental contamination assessment (ECA) report in 1995 and a Supplemental ECA in 1998.831 On 

May 5, 1999, WEPCO submitted a remediation plan that included removal of the saturated ash from the 

northern portion of the site and replacement of ash above the seasonal high groundwater elevation.

The coal ash landfill underwent closure including excavation and removal of approximately 7,500 cubic 

yards ash in direct contact with groundwater and placement of an engineered cap (a synthetic 

geomembrane) over 19 acres of the site’s 26 acres of ash filled area due to presence of buildings and 

other structures; some of the remaining ash landfill was covered by asphalt and is being used for 

parking.

832

 WE Energies paid for the abandonment of contaminated private water supply wells and the 

connection to municipal water from the City of Waukesha. Remediation has been performed.833 The 

facility is inactive and maintained as green space.

Recent test results suggest that contamination at some active private wells near the landfill is still 

continuing, fifteen years after the cleanup was completed. Four private drinking wells show 

molybdenum levels recently above Wisconsin’s health standards. In those wells, the test results show 

that since 2002, molybdenum (up to 62 ppb), boron, and sulfate levels are fluctuating up and down more 

or less in tandem with each other. This suggests that the elements are all coming from the same source –

CCR. These pollutants have exceeded health levels at times, and for some wells the levels appear to be 

increasing.

Previous Basis for Consideration: Scientific: Although the boron standard was not health-based at 

the time of the exceedances, the boron levels reported for the facility would have exceeded the State's 

recently promulgated health-based Enforceable Standards for boron; and contamination from the facility 

appears to have migrated to off-site private wells. And Administrative: As a result of the various 

Preventative Action Limit and Enforceable Standard exceedances, the State required a ground water 

investigation.

ICF (2010) Rationale: Proven Damage, <Groundwater exceeded state enforceable standards (boron) 

but not MCLs. Elevated offsite contaminants (boron and sulfate) appear CCR related despite adjacent 

landfills. Administrative action requiring assessment has no explicit finding of specific damage.>

References

EPA (2007): Coal Combustion Waste Damage Case Assessments, Case #14, docket ID EPA-HQRCRA-2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #14. ICF, 10/2010.

 

831 EPA-HQ-RCRA-2012-0028-0093, Attachments A-1 and A-2.

832 The cover design consists of 3-inches of existing cover fill, a 4-inch sand bedding layer, a 30-mil PVC 

geomembrane, a geocomposite drainage layer (consisting of geotextile and geonet), 2-feet of general fill, and 6-

inches of topsoil.

833 In its comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0432, Appendix C, USWAG requested 

that EPA identify the Highway 59 Site in the docket as a site where the previously identified “proven damage” has 

been resolved to the satisfaction of the State through implementation of corrective measures. However, according to 

Zillmer and Fauble (ibid), WE Energies made a case for not excavating the 30,000 cubic yards of saturated ash 

along the southern portion of this landfill. WDNR recommended the removal of these materials since they seemed to 

represent an additional source of leachate generation. The WDNR included additional environmental sampling of 

private water supply wells as a condition of approving the remedial action plan. The monitoring frequency for downgradient water wells was being increased in response to plume movement.
I. CCR Proven Damage Cases December 2014

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EPRI (2010): Damage Case Report, V. 2: Case Summaries, EPRI, September 2010. Accessed Online 

July 2012.

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%2

0Product%20Damage%20Cases

Zillmer and Fauble (2004): Groundwater Impacts from Coal Combustion Ash Disposal Sites in 

Wisconsin, Pub-Wa 1174, 2004, Michael Zillmer and Philip Fauble, Wisconsin Dept. of Natural 

Resources Waste & Materials Management Division. Accessed Online July 2012. 

http://dnr.wi.gov/files/PDF/pubs/wa/WA1174.pdf

Cherry et al., (2000): Review of the Global Adverse Environmental Impacts to Ground Water and 

Aquatic Ecosystems from Coal Combustion Wastes. Donald S. Cherry, Rebecca J. Currie, and

David J. Soucek, Biology Department, Virginia Tech., Blacksburg, Virginia, prepared for Hoosier 

Environmental Council and Citizens Coal Council, Indianapolis, Indiana, March 28, 2000. Accessed 

Online August 2012.

http://www.citizenscoalcouncil.org/wp-content/uploads/2012/07/A-REVIEW-OF-THE-ADVERSEENVIRONMENTAL-IMPACTS-OF-COAL-COMBUS.htm

USGS (2007): Groundwater Contamination Susceptibility Map, Waukesha County/Protecting 

Wisconsin’s Groundwater Through Comprehensive Planning. Based on: Schmidt, R.R., 1987, 

Groundwater contamination susceptibility map and evaluation: Wisconsin Department of Natural 

Resources, Wisconsin’s Groundwater Management Plan Report 5, PUBL-WR-177-87, 27 pages. 

Accessed Online September 2012.

http://wi.water.usgs.gov/gwcomp/find/buffalo/susceptibility.html

We Energies (2014): Valley Power Plant Conversion. Accessed Online August 2014.

https://www.we-energies.com/home/projects/vapp.htm

PR39. Oak Creek Power Plant, Wisconsin Energy (WE) – Wisconsin Electric Power 

Company, Oak Creek, Racine County, Wisconsin834

Type: Collapse of an Old Structural Fill.

Background and Description: The Oak Creek Power plant has been in operation since the 1950s. 

Around 1953, prior to the operation of the Plant’s two old landfills (between the mid-1960s to the early 

1990s) and the current, active Caledonia Landfill, WE began disposing of ash as fill on what is referred 

to today as Early Ash Disposal Areas (EADAs). One of the EADAs filled in that pre-regulation era was 

a ravine near the Milwaukee/Racine County line. Unlicensed ash disposal continued at the site through 

the 1960s, until ash became regulated as solid waste.835

 

834 This module focuses on Oak Creek’s proven damage case that is associated with the collapse of CCR structural 

fill on October 31, 2011 and its aftermath. There is a separate write up on Oak Creek’s potential damage case that is 

associated with molybdenum exceedances in off-site drinking water wells (Module PTb55).

835 According to USWAG’s comment to the August 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211, page 

43, footnote 32), <In that (October 31, 2011) incident, a bluff on the facility property collapsed in what has been 

called a “freak accident” and some of the debris was carried into Lake Michigan. It appears that the debris may have 

included fly ash that was used to fill a ravine at the site in the 1950’s. It must be stated, however, that this historical 
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In January 2008, WE requested an exemption to use the EADA on the bluff overlooking the south 

portion of their Oak Creek Power Plant as a staging and material storage area during construction of a 

new air pollution control system.836 WDNR granted a conditional exemption for the use of this area in 

June 2008. The exemption conditions did not allow for the construction of permanent buildings or 

equipment on the EADA; required installation of liners to minimize infiltration of water into the ash 

from retention basins and open drainage channels constructed over ash; prohibited placement of ash 

where ponding, dewatering, and flooding might occur, and required removal of any saturated ash 

encountered during construction.

Impact and Damage Claims: On October 31, 2011, a lakefront bluff along Lake Michigan, near the 

construction site for a new air scrubber facility, at the eastern edge of the EADA and slightly downhill 

from an unlined, storm-water retention pond gave way, generating a mudflow and releasing a variety of 

construction materials (sea/land containers, road- and construction vehicles, and fuel containers), soil, 

and fly- and bottom ash into Lake Michigan.837 The collapsed area resulted in a debris field stretching 

120 x 50 to 80 yard. About 25,000 cubic yards of historic coal ash mixed with soil have been mobilized, 

725 cubic yards of which ended in the Lake. Initial estimates of potential petroleum product discharge 

were reduced from 1,000 gallons to 150 gallons.838 For a documented coverage of the October 31, 2011 

incident and a January 9, 2012 reassessment, see references.839

In a sample of EPA-collected and analyzed soil/fly ash material from the base of the landslide, elevated 

levels of arsenic, chromium, and TCE were detected.

840

Resolution:841 WDNR, USEPA, US Coast Guard, and WE formed a Unified Incident Command team. 

The Command team issued daily reports on the progress of clean-up activities. Samples of the historic 

coal ash and soil mixture and of lake water were collected, particularly at the intakes to water treatment 

plants along the lake (Cities of Oak Creek and Racine). Impacts to the lake water appear to be limited to 

the immediate vicinity of the spill site, and impacts to drinking water supplies have not been detected. 

Evaluation against Proven Damage Criteria

Criteria Evaluation

Criterion 1: documented exceedances of primary 

MCLs or other health-based standards measured 

in groundwater at sufficient distance from the 

waste management unit to indicate that hazardous 

 None. 

 

use of fill is not indicative of current structural fill practices. In fact, the ravine filling activity at the Oak Creek 

facility was discontinued decades ago and would not be permissible today under Wisconsin’s CCR structural fill 

requirements.>

836 Summary of Bluff Failure We Energies Oak Creek Power Plant, WI Natural Resources Board Meeting, Waste 

and Materials Management program, December 12, 2011.

837 According to NOAA (Undated), this coal ash reportedly consisted of ~80 percent fly ash and ~20 percent bottom 

ash. The particle size was reportedly about10 μm. 

838 The Seattle Times (2011); the original figure of 250,000 cubic yard was modified to 25,000 cubic yard in the 

November 13-14, 2011 update of the Incident Status Summary reports from Unified Command (ICS-209). See also 

POLREP #3 (2011). The amount of collapsed material was revised again - to 22,720 cubic yards: Milwaukee 

Wisconsin Journal Sentinel (2013).

839 Milwaukee Wisconsin Journal Sentinel (JSOnline, 2012).

840 December 2011. See also WDNR Waste and Materials Management (2011).

841 Coakley (2011).
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After the stability of other portions of the bluff was assessed and site safety was ascertained, cleanup 

activities were started near the Lake Michigan shore. WE also began to clear the historic ash and soil 

mixture from the wastewater polishing ponds (sited so as to protect the water quality of Lake Michigan.) 

The majority of the ash/soil mix involved in the slide has been collected and disposed in the lined, 

engineered WE Caledonia Landfill. Equipment was located and removed from the lake.

842

USCG asked the National Oceanic and Atmospheric Administration (NOAA) to prepare an emergency 

response recommendation.843 It was decided that once coal ash enters the water, there are no effective 

containment strategies beyond preventing additional ash from entering the water. The containment 

efforts included 1,500 feet of linear boom on the Lake to contain the debris and fuel.

Analysis of water samples in the immediate vicinity of the release to the water contains substances 

consistent with fly ash, but analysis shows substance levels in the water column dropped off rapidly. An 

early January 2012, joint NOAA/Coast Guard report established that the ash that ended in the Lake 

would be so dispersed that it would not have any significant environmental impact,844 and that no 

recoverable quantities of coal ash would be found on the lakebed. Based on these findings as well as the 

preliminary chemical analysis, WDNR concluded there is no public health risk from the collapse and the 

coal ash does not appear to pose a significant risk to the environment.845 However, some long term, sublethal impacts on local fish and raptor populations cannot be totally ruled out.846

 

On March 2, 2012, upon conclusion of its investigation to determine the cause of the bluff failure, 

WDNR issued a notice of violation (NOV) of state solid waste regulations against WE, following the 

constituents have migrated to the extent that they 

could cause human health concerns

Criterion 2: where a scientific study provides 

documented evidence of another type of damage 

to human health or the environment (e.g., 

ecological damage)

 None

Criterion 3: where there has been an 

administrative ruling or court decision with an 

explicit finding of specific damage to human 

health or the environment

 WDNR issued a Notice of Violation in early March, 

2012, alleging WE failed to comply with 

construction permit requirements for lining a storm 

water pond. This resulted in the collapse of some 

25,000 cubic yards of coal ash mixed with soil and 

mechanical equipment unto the shore and water of 

Lake Michigan, causing local contamination by 

diesel fuel, TCE, arsenic, and chromium.

 

842 According to Milwaukee Wisconsin Journal Sentinel (2013), the cleanup and site remediation cost amounted to 

$12.1 million. The remediation work was completed in about a month’s time, and the ravine was regarded in the 

spring of 2012.

843 NOAA (Undated).

844 Ibid.

845 See supporting data at WDNR Waste and Materials Management (2011).

846 The NOAA report states that long-term, sub-lethal effects of heavy metals in local fish such as Lake trout 

(Salvelinus namaycush), spawning at this time of year, chinook, coho, and rainbow trout, are a possibility, making 

them unsafe for human consumption. In addition, several species of raptors, including bald eagles (state special 

concern), osprey (state special concern), peregrine falcon (state endangered), red-shouldered hawk (state 

threatened), pigeon hawk, and northern goshawk (state special concern) that feed on fish may become contaminated.
I. CCR Proven Damage Cases December 2014

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late 2011 collapse of a bluff into the shores and water of Lake Michigan.847 DNR faulted WE for 

developing a stormwater pond on a coal ash site adjacent to the utility's Oak Creek Power Plant, 

claiming that WE’s failure to install and maintain a proper liner contributed to the environmental 

mishap. WE is subject to fines of up to $5,000 per day during the period of violation. The NOV said that 

under the conditional exemption for building a waste site issued by DNR, the company was required to 

install a liner where ponds or open channels are constructed over the waste site. DNR's report on the 

mishap noted that several sources of water played roles in the bluff collapse, but the lack of a liner was a 

significant factor.848

Early in July 2013, WE settled with WDNR849 to pay $100,000 for three violations of state 

environmental regulations in connection with the October 2011 bluff collapse into Lake Michigan. The 

complaint alleged that WE had excavated waste materials and constructed a new retention pond in areas 

other than those approved by the DNR, failed to notify the DNR when grading of the project reached 50 

percent completion, and failed to revise its erosion control plans when the retention pond was moved.

On November 8, 2011, The Sierra Club filed a notice of intent to sue WE,850, 851 alleging violations of 

federal environmental statutes resulting from the collapse of a bluff containing coal ash into Lake 

Michigan. The Sierra Club alleged violations under the CWA and RCRA based on the company's 

improper management of a coal ash impoundment facility at the Oak Creek Power Plant. 

References:

The Seattle Times (2011): Officials study effects of Lake Michigan collapse damage, November 2, 2011.

Accessed Online June 2012.

http://seattletimes.nwsource.com/html/nationworld/2016673293_apuspowerplantbluffcollapse.html

POLREP #3 (2011): Oak Creek Bluff, Oak Creek, Wisconsin, US Environmental Protection Agency 

Pollution/Situation Report, November 21, 2011. Accessed Online June 2012. 

http://www.epaosc.org/site/sitrep_profile.aspx?site_id=7404

Milwaukee Wisconsin Journal Sentinel (JSOnline, 2012): Report downgrading Oak Creek bluff collapse 

damage, January 9, 2012. Accessed Online June 2012.

http://www.jsonline.com/news/milwaukee/authorities-investigate-bluff-collapse-at-we-energies-plant132929538.html; http://www.jsonline.com/business/report-downgrades-bluff-collapse-damage-873o47t136992038.html

Milwaukee Wisconsin Journal Sentinel (JSOnline, 2012a): DNR proposes violation against WE Energies 

in coal ash bluff collapse, March 1, 2012. Accessed Online June 2012.

http://www.jsonline.com/blogs/business/141110853.html#comments

 

847 DNR Proposes Violations against We Energies in Coal Ash Bluff Collapse, Milwaukee Journal Business 

Sentinel, March 1, 2011: http://www.jsonline.com/blogs/business/141110853.html; and Wisconsin Energy Corp. 

Accused of Violating Waste Rules Following Lake Contamination, BNA Snapshot, March 6, 2011.

848 In the violation notice, the WDNR notes that a detention pond (built in 2009) for the flue gas desulfurization 

process “appears to have the greatest potential to impact groundwater recharge and flow to the bluff collapse area. 

Even at low seepage rates, a significant volume of water would have discharged through the basin bottom over the 

three-year period since the basin was constructed.”

849 The settlement was filed in Racine County Circuit Court: Milwaukee Wisconsin Journal Sentinel (2013).

850 BNA Snapshot (2011).

851 Notice of Intent to Sue (2011).
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206

AGU Blogosphere (2011): Intriguing Landslide of the Week – catastrophic bluff collapse at WE 

Energies plant at Oak Creek in Wisconsin, November 1, 2011. Accessed Online June 2012.

http://blogs.agu.org/landslideblog/2011/11/01/intriguing-landslide-of-the-week-catastrophic-bluffcollapse-at-oak-creek-in-wisconsin/

Coakley (2011): Summary of Bluff Failure We Energies Oak Creek Power Plant Natural Resources 

Board Meeting, Ann Coakley, Director, Waste and Materials Management Program, December 14, 

2011. Accessed Online June 2012.

http://dnr.wi.gov/org/aw/wm/oakcreek/nrbpresentation.pdf

WDNR Waste and Materials Management (2011): Oak Creek Bluff Collapse Cleanup, December 15, 

2011. Accessed Online June 2012.

http://dnr.wi.gov/org/aw/wm/oakcreek.html

NOAA (Undated): Oak Creek Power Plant Coal Ash Release, LCDR John (Jay) Lomnicky. NOAA’s 

Emergency Response Recommendation, Prepared for US Coast Guard, Sector Lake Michigan, NOAA / 

National Ocean Service / Office of Response & Restoration / Emergency Response Division. Accessed 

Online June 2012.

http://dnr.wi.gov/org/aw/wm/oakcreek/noaa-finalreport.pdf

BNA Snapshot (2011): Lawsuit against Utility over Coal Ash Incident near Milwaukee: Notice of Intent

to Sue over Collapse of Bluff Containing Coal Ash, BNA Snapshot, November 14, 2011. Accessed 

Online June 2012. 

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=23428611&vname=dennotallissues&fn=2

3428611&jd=a0c9r2c0t4&split=0

Notice of Intent to Sue (2011): Notice of Intent to Sue under the Federal Clean Water Act and Resource 

Conservation and Recovery Act; McGillivray, Westerberg, & Bender LLC, Attorneys. November 8, 

2011. Accessed Online June 2012. 

http://op.bna.com/env.nsf/id/jsml-8ngunk/$File/OakCreek.pdf

Milwaukee Wisconsin Journal Sentinel (2013): We Energies pays $100,000 to settle state lawsuit over 

bluff collapse, Milwaukee Wisconsin Journal Sentinel, July 9, 2013. Accessed Online May 2014.

http://www.jsonline.com/business/we-energies-pays-100000-to-settle-state-lawsuit-over-bluff-collapseb9951038z1-214787161.html

USWAG (2011): Comment submitted by Jim R. Roewer, Executive Director, Utility Solid Waste 

Activities Group (USWAG), et al. to the August 2011 NODA. Accessed Online September 2014.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2011-0392-0211
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PR40. E.J. Stoneman Generating Station Ash Disposal Pond, Dairyland Power 

Cooperative, Cassville Ash Disposal Site,852 Grant County, Wisconsin

Type: Surface Impoundment.

Brief Description: This unlined, 21.8-acre surface impoundment was located just southeast of the town 

of Cassville,853 on the floodplain between a line of bluffs and the left bank of the Mississippi River, on 

permeable sand and gravel (permeability of about10-2cm/sec).854 It managed fly ash and subordinate 

bottom ash from the combustion of southern Illinois coal, demineralizer regenerate, and sand filter 

backwash between the 1950s and 1987.855

 

Whereas the long-term groundwater gradient is southerly, from the bluffs to the River, in detail, the 

disposal area shows radial flow with an alternating centrifugal and centripetal groundwater flow 

regime.856 The permeable deposits below the site serve as an aquifer for the Village of Cassville 

Municipal Water Supply upgradient of the site and for residences and businesses outside of the Village 

limits. Fifteen of these wells are within 1200 feet of the site; at least three of those are shallow, small 

diameter wells screened from 36-40 feet below the surface.

Impact: Monitoring data includes 27 groundwater locations that were monitored between December 

1976 and December 1998. Thirteen potable wells sampled, located up to 550 feet away from the site, 

recorded on site groundwater MCL exceedances for cadmium and chromium, and SMCL exceedances 

for sulfate, manganese, iron, and zinc. Offsite wells had cadmium, boron and sulfate elevated over 

background. The following maximum values were recorded: cadmium: 1226 μg/L; chromium: 1,360 

μg/L; sulfate: 1,470 mg/L; TDS: 2,124 mg/L; boron: 57 mg/L; manganese: 9.9 mg/L; iron: 30 mg/L; and 

zinc: 52 mg/L. 

Resolution: Due to groundwater contamination and violation of State location standards (the 

impoundment was located close to the Mississippi River, in violation of the State’s requirement for 300 

feet of separation from navigable rivers, and closer to 15 water supply wells than allowed by State 

standards), the State issued an administrative order for a groundwater study in 1976, and required 

(January 1982) the operator to close the facility and provide alternative drinking water to the affected 

residences. The utility installed cover in 1989, and consolidated the ash to 10-acre area away from 

residences. Since 1989, coal ash has been managed in a double-lined landfill, with leachate collection. 

The site is now under long-term care requirements and continued groundwater monitoring. According to 

the utility,857 there are no longer off-site impacts.

Previous Basis for Consideration: Scientific: Cadmium and chromium exceeded (health-based) 

primary MCLs, and contamination [boron and sulfate] migrated to nearby, private drinking water wells; 

and Administrative: The State required closure of the facility.

ICF (2010) Rationale: Potential Damage. <On site groundwater exceeded MCLs for cadmium and 

chromium and SMCLs for iron, manganese, sulfate, and zinc. Boron and sulfate contamination have 

migrated to nearby private drinking water wells; however, there is no indication that these concentrations 

exceed health-based standards.>

Postscript: ICF failed to note that “More recent monitoring data confirm ... cadmium exceeding the 

primary MCL.... in the (offsite) drinking water wells.”858

References
I. CCR Proven Damage Cases December 2014

208

EPA (2007): Coal Combustion Waste Damage Case Assessments, Case #13, docket ID EPA-HQRCRA-2006-0796-0015, U.S. EPA Office of Solid Waste, July 9, 2007.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2006-0796-0015

ICF (2010): Assessment of Previously Identified Proven Damage and Recently Alleged Damage Cases, 

Appendix A, Case #13. ICF, 10/2010.

EPRI (2010): Damage Case Report, V. 2: Case Summaries, EPRI, September 2010. Accessed Online 

July 2012.

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%2

0Product%20Damage%20Cases

EPA (1999): Technical Background Document for The Report to Congress On Remaining Wastes From 

Fossil Fuel Combustion: Potential Damage Cases, March 15, 1999. Accessed Online July 2012. 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/regs.htm

WDNR (2012): Solid Waste Landfills Licensed in Wisconsin, Licensed for Year 2012 (Oct. 1, 2011 -

Sept. 30, 2012). June 29, 2012. Wisconsin Department of Natural Resources. Accessed Online 

September 2012.

http://dnr.wi.gov/topic/Waste/documents/faclists/WisLic_SWLandfills_byCnty_withWaste.pdf

USGS (2007): Groundwater Contamination Susceptibility Map, Grant County/Protecting Wisconsin’s 

Groundwater Through Comprehensive Planning. Based on: Schmidt, R.R., 1987, Groundwater 

contamination susceptibility map and evaluation: Wisconsin Department of Natural Resources, 

Wisconsin’s Groundwater Management Plan Report 5, PUBL-WR-177-87, 27 pages. Accessed Online 

September 2012.

http://wi.water.usgs.gov/gwcomp/find/grant/susceptibility.html

 

852 According to WDNR (2012), the current landfills License Number is 3122 (for a landfill with a capacity of 

50,000 to 500,000 cubic yards).

853 On the opposite side of town is the Nelson Dewey Ash landfill (2007 CCW Damage Case Assessments, Case 

#15).

854 For Grant County groundwater susceptibility, depth to water table, bedrock type, depth to bedrock, and soil 

deposits maps, see USGS (2007).

855 EPA (1999). The Stoneman Station was brought into service and owned by Dairyland in 1951. The Plant 

comprises two generation units, with nameplate capacity of 18 MW and 35 MW. It was sold to DTE Energy Co., a 

Detroit, Michigan-based utility, in the 1990s, and recently converted into a biomass-fueled facility.

856 Mound or depression depending on the river level (”it appears that because of its lower permeability –

10-5cm/sec - water levels in the ash fall more slowly during periods of falling river levels, creating a mound. The 

reverse occurs during periods of rising river levels.”) Due to the varying groundwater flow directions, there are no 

up-gradient wells associated with the site.

857 EPRI (2010).

858 EPA (2007).
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