Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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Alexander Livnat, Ph.D.

12/18/2014

Evidence of fugitive dust impact throughout the life cycle management of coal combustion residuals (CCR) 

has been available even prior to the publication of the proposed CCR rule in June 2010. Since the proposed 

rule was issued, a great deal of additional evidence has surfaced. This evidence, combined with the results 

of air quality risk screening conducted by EPA that demonstrated human health risk associated with CCR 

fugitive dust was instrumental in EPA’s decision to regulate air quality issues associated with CCR 

management. This technical support paper documents all CCR fugitive dust impact cases known to EPA at 

the time the final CCR management rule was about to be signed.
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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Vitale Fly Ash Pit, Beverly, Massachusetts...................................................................................................3

AES Coal Combustion Plant, Guayama, Salinas Area, Puerto Rico ................................................................3

BBSS S&G Quarries, Constellation Energy, Gambrills, Anne Arundel County, Maryland................................5

Brandywine Coal Ash Landfill, Mirant MD Ash Management, LLC/Mirant Mid-Atlantic, LLC,........................6

Dominion Virginia Power’s Battlefield Golf Course, Chesapeake, Virginia ....................................................7

Indian River Power Plant – NRG Energy (Formerly: Delmarva Power), Burton Island, Millsboro, Delaware ..8

First Energy’s Bruce Mansfield Power Plant, Little Blue Run Impoundment, Shippingport, Greene Township, 

Pennsylvania............................................................................................................................................. 11

Mitchell Power Station, Allegheny Energy, Courtney, Pennsylvania........................................................... 14

La Belle, Luzerne Township, Fayette County, Pennsylvania........................................................................ 14

Rostosky Ridge Road Collapse of CCR Pile, Forward Township, Allegheny County, Pennsylvania................ 18

East End Landfill (aka East End Resource Recovery), 1820 Darbytown Road, Henrico County, Virginia ....... 21

Fort Martin Power Plant, Fort Martin, West Virginia ................................................................................. 23

Arrowhead Landfill, Uniontown, Perry County, Alabama........................................................................... 24

Duke Energy’s Riverbend Steam Plant, Mt. Holly, Mecklenburg CO., North Carolina.................................. 26

Progress Energy, Asheville (Arden), North Carolina ................................................................................... 27

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

Carolina .................................................................................................................................................... 29

Harlan County, Kentucky........................................................................................................................... 29

Louisville Gas & Electric Cane Run Power Plant, 5252 Cane Run Rd., Louisville, Kentucky .......................... 30

Duke Energy’s Gibson Generating Station, Somerville & Mount Carmel Area, Indiana ............................... 36

Hoosier Energy Merom Station, Merom, West Old 54, Sullivan County, Indiana ........................................ 37

Ameren Coffeen Power Station and US Minerals, Coffeen, Illinois............................................................. 39

Rocky Acres Coal Combustion By-Product Disposal Site – Bunge Corp., Oakwood, Vermilion County, Illinois

................................................................................................................................................................. 40
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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Electric Energy, Inc., Met-South Coal Combustion Waste Disposal Facility, Joppa, Illinois .......................... 41

Arizona Public Service San Juan Generating Station and Four Corners Power Plant, New Mexico............... 45

Valmont Coal Plant, Boulder, Colorado ..................................................................................................... 46

Nevada Energy, Reid Gardner Generating Station, Moapa, Nevada ........................................................... 47

College Peat and Landscaping and Alaska Industrial Support, Inc., Fairbanks, Alaska ................................. 51

Fugitive Dust Cases: Summary Table ......................................................................................................... 54
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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EPA Region 2

Vitale Fly Ash Pit, Beverly, Massachusetts

Implicated Activity: Disposal, landfill (sand and gravel pit).

Description: An abandoned sand and gravel pit used as an unpermitted landfill between the 

1950s and the mid-1970s. The Vitale Brothers, the site owners until 1980, accepted and 

disposed saltwater-quenched fly ash from New England Power Company along with other 

wastes.

Status: The site submitted a site-closure report February 1, 2007, and a preliminary screening 

of the site closure report was underway in July 2007, and is no longer active.

Impact Summary: In addition to groundwater and surface water impacts, there were 

complaints of fugitive dust from the site from neighbors located 500 feet away. 

Study: Air sampling on one occasion in 1988 revealed arsenic concentrations of 2 ppb.

Regulatory and Legal Response: Unknown.

References:

Coal Combustion Waste Damage Case Assessments, July 2007, EPA (Case #2).

AES Coal Combustion Plant, Guayama, Salinas Area, Puerto 

Rico

Implicated Activity: Beneficial use (structural fill).

Description: In the absence of CCR disposal facilities, AES sells all its CCR (300K ton/year) at 

$0.15/ton, with free customer delivery, once recipient commits to limit the type of testing he 

can perform. CCR (mixed fly- and bottom ash, with added water, drying and cutting) are used as 

fill material in residential, commercial and road construction sites. The coal plant frequently 

stockpiles tens of thousands of tons of CCR in proximity to the Jobos Bay; particles of CCRs are 

mobilized by the Caribbean breeze into the Ocean.
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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Status: Active.

Impact Summary: Photographs of residential construction sites where CCRs were used in 

Salinas, PR, reflect virtual clouds of CCRs (particularly in the dry, December to May season) in 

spite of the fact that the Commonwealth government theoretically requires fugitive dust 

controls at construction sites.

Study: “A recent sample from the power plant indicates alpha particles of 9.9 pCi/g (nearly 

twice EPA’s ARARs), in addition to 5.7 pCi/g beta particles and high levels of Arsenic (23 mg/kg) 

and other metals.” The recommendations of a March 2006 University of Puerto Rico study: 

Possible Applications for Circulating Fluidized Bed Combustion By-Products from the Guayama 

AES Power Plant – for a great number of detailed CCR evaluations to better determine 

suitability of CCP for different applications have not been performed prior to its extensive use 

as a fill material.

Regulatory and Legal Response: Puerto Rico has weak regulatory system: When the 

Salinas Municipal landfill contaminated nearby wells, the government authorized relocation of 

the wells rather than requiring corrective action. New PR permitting regulations curtail public 

participation in siting processes and other activities requiring permits (Law 161, December 1, 

2009). Puerto Rico’s Environmental Quality Board (Junta de Calidad Ambiental) has no 

regulations in place regarding CCRs generation, disposal or secondary use. In 1996, the Board 

issued a resolution (Resolution 96-39-1; ratified by Resolution R-00-14-2, April 25, 2000) 

providing that EAS was not required to comply with the provisions applicable to installations 

that produce solid wastes. There are no permit or notification requirements for beneficial use

projects, nor a requirement for independent characterization of CCR prior to its secondary use.

The Guayama region, with one of the highest percentages of people of African descent in PR, 

including high poverty rates, unemployment and school dropout rates, qualifies as an 

environmental justice community.

Public Justice announced on September 26, 2012 an Intent to Sue AES due to its liberal use of 

CCR in construction projects that cause, among others, excessive fugitive dust.1

References:

Arlington, VA, Public Hearing, August 30, 2010: 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

 

1 http://publicjustice.net/sites/default/files/downloads/Final-AES-Notice-Letter-with-Appendicies-26Sep2012.pdf.
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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May 4, 2011 meeting between Ruth Santiago, a community activist, and EPA, Arlington, 

Virginia.

EPA Region 3

 

BBSS S&G Quarries, Constellation Energy, Gambrills, Anne 

Arundel County, Maryland

Implicated Activity: Disposal, structural fill (sand and gravel pits).

Description: Fugitive dust associated with reclamation work of two mining pits.

Status: Inactive. Site ceased receiving CCR as a result of contamination by heavy metals of 

adjacent drinking water wells. 

Impact Summary: Complaints by neighboring residents.

Study: In December, 2007, Environmental Maryland documented the impacts of resuspended 

CCRs on a Maryland residential community adjacent to the Gambrills mine reclamation site in a 

study that showed that CCR fugitive dust (fly ash and/or coal ash), emanating from the disposal 

site, were present in all the samples collected throughout the community. Coal particulate 

represented between trace amounts (<1%) to 5% of the total particulate in these samples, with 

four of these samples containing more than trace amounts of post-combustion coal particulate. 

Fly ash was present at 12 of the 12 sampled sites; coal ash was present at eight sites; oil soot 

was present at six sites; and wood char was present at six sites. These grab-samples give an 

immediate picture of the particulate at that moment in time: depending on time, weather, and 

wind conditions, percentages could increase or decrease.

Regulatory and Legal Response: None specific to fugitive dust.

References:

Brad Heavner, Environment Maryland, comment to the docket: EPA-HQ-RCRA-2009-0640-4041.

Joshua Stewart, Airborne fly ash concerns residents, Annapolis Capital, September 26, 2007. 

Reprinted in http://www.croftonfirst.org/docs/Airborne_fly_ash_concerns_residents.pdf
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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Coal Ash Found In Dust at Homes Near Gambrills Dump, news release, Environmental America, 

January 3, 2008: http://www.environmentamerica.org/news-releases/clean-air/clean-air2/coalash-found-in-dust-at-homesnear-gambrills-dump (inaccessible, 3/16/2012)

 

Brandywine Coal Ash Landfill, Mirant MD Ash 

Management, LLC/Mirant Mid-Atlantic, LLC, Brandywine, 

Prince George’s County, Maryland 

Implicated Activity: Disposal (landfill).

Description: None available.

Status: Active.

Impact Summary: Windblown ash from the Brandywine coal ash landfill produces dense 

clouds of fugitive dust from large piles of uncovered ash. A children’s playground is located 250 

yards from the uncovered landfill, and there is a little league baseball field and kid’s soccer field 

within several hundred yards of the coal ash site. About a dozen homes lie within a half-mile of 

the landfill. 

Study: No air monitoring or soil/dust sampling has been completed as of May 2011. 

Regulatory and Legal Response: None specific to fugitive dust. In April 2010, MDE filed 

suit in federal court maintaining that the disposal site was leaching pollutants in violation of the 

CWA and state law. A $1.9 million settlement was reached in January 2013.

References:

May 10, 2011 email, with an attachment and photos, from Lisa Evans, EarthJustice, to A. Livnat, 

EPA/OSWER. 

Prince George’s Cable TV News (CTV) documented the problem in a news segment: 

http://www.youtube.com/watch?v=xiT5aK0CV88.
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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Dominion Virginia Power’s Battlefield Golf Course, 

Chesapeake, Virginia 

Implicated Activity: Beneficial use (structural fill). (Also, a potential damage case site on 

account of groundwater contamination.)

Description: Between 2002 and 2007, Dominion Virginia Power built a 217-acre, 18-hole golf 

course with 1.5 million tons of coal ash. The coal ash was amended with 1.7 to 2.3 percent 

cement kiln dust. During construction of the golf course, neighbors and workers reported 

clouds of black dust migrating from the construction site to the adjacent residential 

neighborhoods.

Status: Inactive.

Impact Summary: Homeowners abutting the golf course reported that their homes, yards, 

cars, picnic tables and play equipment were covered with ash. They were reassured by 

Dominion Virginia Power it was harmless.

Study: None.

Regulatory and Legal Response: In March 2009, a lawsuit was filed by 400 residents from 

neighborhoods surrounding Battlefield Golf Club against Dominion Virginia Power, Combustion 

Products Management, VFL Technology, Battlefield Golf Club at Centerville owners MJM Golf 

LLC, and several related companies. The plaintiffs asked more than $1 billion in damages. The 

attorneys dropped that lawsuit in 2011, after the court dismissed substantial portions of the 

case. Whereas the judge ruled that the residents had not provided enough evidence that they 

had suffered damages from well water contamination,2 one of the parts of the lawsuit allowed 

to move forward allege that airborne contaminants from the golf course pose a health risk.

In August 2009, another lawsuit was filed against Dominion Virginia Power against the same 

group of defendants. The suit maintained that the material has begun to leach into the 

groundwater feeding two neighborhoods in Chesapeake's Fentress section. It sought $1.25 

billion to remove the fly ash, clean and restore the site, and bring public water and sewer to the 

neighborhoods. It also sought millions more to pay for homes, properties, medical bills and the 

nuisance created by the development. 3

 

2 Dominion Virginia Power funded an alternative, piped water supply system to the affected neighborhood.

3 According to a former construction manager of the golf course, Dominion Virginia Power directed the building of 

the course with fly ash to disguise the project’s true purpose—a coal ash dump. In a sworn statement, Derrick 
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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In February 2012, a contractor who helped build the course filed a $10 million lawsuit in 

Chesapeake Circuit Court against Dominion and the company that transported the fly ash, 

alleging that the material used in shaping the course caused his kidney cancer. According to 

that suit, the plaintiff, Neil Wallace, inhaled fly ash particles while working at the site regularly 

over a five-year period and developed a cancerous kidney that was removed in 2010.4

In February 2012, lawyers representing nearly 400 people living near the Battlefield Golf Club at 

Centerville refiled a lawsuit, asking for damages related to toxic fly ash on which the course was 

built.5 The lawsuit asks for $2 billion in damages. As of May 2013, a half-dozen lawsuits were 

still pending in Circuit Court.6

References:

Hazardous and Solid Waste Management System: Identification and Listing of Special Wastes; 

Disposal of Coal Combustion Residuals from Electric Utilities. EPA Proposed rule, June 21, 2010.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2009-0640-0352

The Virginian Pilot (2013): Chesapeake fly ash fight yields little resolution, The Virginian Pilot, 

May 5, 2013. Accessed Online January 2013.

http://hamptonroads.com/2013/05/chesapeake-fly-ash-fight-yields-little-resolution

Ash in Lungs: How Breathing Coal Ash is Hazardous to Your Health. Alan H. Lockwood and Lisa 

Evans, Physicians for Social Responsibility and EarthJustice. August 1, 2014:

http://www.psr.org/news-events/homepage-story-archive.html?page=2

 

Indian River Power Plant – NRG Energy (Formerly: 

Delmarva Power), Burton Island, Millsboro, Delaware

 

Howell, a former employee of the builder of the golf course, said, “It was clear that a golf course wasn’t being 

built,” stated Howell. “It was a coal ash dump. All Dominion ever cared about was tonnage and how much more 

they could dump.”

Louis Hansen, The Virginian-Pilot, Lawsuit claims Dominion saw golf course as ‘coal ash dump, August 27, 2009: 

http://hamptonroads.com/2009/08/lawsuit-claims-dominion-saw-golf-coursecoal-ash-dump

4 Chesapeake fly ash suit against Dominion refiled. PilotOnline, February 22, 2012: 

http://hamptonroads.com/2012/02/chesapeake-fly-ash-suit-against-dominion-refiled

(Originally: Marjon Rostami, TheVirginian-Pilot, Chesapeake fly ash suit against Dominion refilled, February 22, 

2012: http://hamptonroads.com/2012/02/chesapeake-fly-ash-suit-against-dominion-refiled).

5 The suit was filed against Dominion Virginia Power, MJM Golf LLC - the golf club's owners - and two other parties 

involved in building the golf course.

6 The Virginian Pilot (2013): Chesapeake fly ash fight yields little resolution, The Virginian Pilot, May 5, 2013. 

Accessed Online January 2013.

http://hamptonroads.com/2013/05/chesapeake-fly-ash-fight-yields-little-resolution
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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Implicated Activity: Disposal (landfill).

Status: Active. (A potential damage case on account of groundwater contamination).

Description: The Phase I Landfill mound loses 1.51 tons/year from wind erosion.

7

Impact Summary: The population in the six zip codes around the facility is a lung cancer 

cluster with an incidence of 104.7 per 100,000 compared to Delaware’s 76.9 rate; 16% of Indian 

River District-school children have special education needs compared to 9.7% upwind; and 

heart disease, stroke, and heart attack rates are all elevated.8

Study: In response to community requests, the Delaware Division of Public Health (DPH) and 

Delaware Department of Natural Resources and Environmental Control (DENRC) launched a 

series of studies. In July 2007, DPH issued a report concerning a cancer cluster investigation in 

the Indian River area of Sussex County. The DPH study confirmed the existence of a statistical 

cancer cluster, but did not identify any increased rate of unusual cancers or cancer incidence 

among young people. DPH stated that, without further information, it was not possible to 

assign a cause to the cancer cluster.

9

In May 2008, the Air Surveillance Branch issued a report on a short-term study using portable 

battery-operated monitors to determine PM2.5 concentrations in the Indian River area. 10 The 

final report concluded that although the study period was too brief to fully investigate the 

relationship of concentrations to wind directions, Hysplit11 was used to examine the track of the 

air parcels on the five highest PM2.5 concentration days. The results were consistent with strong 

regional source influence, and didn’t support a strong local source. A follow up, November 2009 

study concluded that when considered as a whole, findings from the study do not rule out 

tobacco use and occupational exposure as contributing factors to the elevated lung cancer rate 

in the Indian River area. 12

 

7 Citizens for Clean Power (CCP), comment to the proposed CCR rule docket: EPA-HQ-RCRA-2009-0640-0358.

8 CCP, ibid.

9 Cancer Cluster Investigation, Indian River Area, Delaware Health and Social Services Division of Public Health, 

7/17/2007: http://dhss.delaware.gov/dph/dpc/files/irrpt071707.pdf.

10 Between 12/2/2007 and 3/7/2008, with 26 scheduled sampling days.

11 Hybrid Single Particle Lagrangian Integrated Trajectory Model.

12 < Regardless of lung cancer status, Indian River participants were significantly more likely than non-Indian River 

participants to be heavy smokers and to have worked in a high-risk industry. Thus, baseline prevalence rates 

suggest that the Indian River community may have a unique lung cancer risk factor profile. When considered as a 

whole, findings from the IRCLS do not rule out tobacco use and occupational exposure as contributing factors to 

the elevated lung cancer rate in the Indian River area. Given the magnitude of odds ratios, tobacco use is the major 

factor that explains the original finding of the elevated lung cancer rate in the Indian River area of Sussex County, 

Delaware.>
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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On May 28, 2013, the State of Delaware issued a final report: The fall 2011 and fall 2012 sample 

collection periods included 32 participants recruited from the vicinity of the NRG Energy power 

plant in Sussex County, Delaware. The participants allowed personal, indoor residential and 

outdoor residential particulate matter samples to be collected over 3 consecutive days.13 Data 

demonstrated that ambient background PM2.5 concentrations in southern Delaware are driven 

by long-range airborne transport from neighboring upwind states and metropolitan areas. 

These findings were criticized as the result of a faulty study, which used too small of a sample 

and by design, didn't capture the impact of long-term exposure to pollution.14

Regulatory and Legal Response: According to citizen Advocacy groups, Current permits 

and state regulations are ineffective other than to record reported dusting complaints. The 

State does not monitor PM downwind of the facility, as for its size only one sampler is needed 

for Sussex County (in Seaford, Delaware, 19 miles to the WNW).

A citizen suit brought by CCP for 6,304 documented violations of the CAA and the facility’s own 

Title V state operating permit between 2004 and 2008. Before CCP’s suit made it to court, 

DNREC filed a complaint against NRG Energy and the two settled out of court (NRG Energy paid 

$5,000 for its violations and had to purchase a $60,000 air quality monitor for the Department.) 

CCP charged DNERC was trying to preempt its lawsuit and alleged DNERC was not pursuing 

meaningful penalties or enforcing the law. The court held the state acted within its authority 

and “its DENRC and not the citizens, who is principally responsible for enforcing the law.”

References:

Out of Control: Mounting Damages from Coal Ash Waste Sites, Thirty-one New Damage Cases 

of Contamination from Improperly Disposed Coal Combustion Waste. Environmental Integrity 

Project and EarthJustice. February 24, 2010. Case #1.

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

Citizens for Clean Power (CCP), comment to the docket: EPA-HQ-RCRA-2009-0640-0358.

Cancer Cluster Investigation, Indian River Area, Delaware Health and Social Services Division of 

Public Health, 7/17/2007: http://dhss.delaware.gov/dph/dpc/files/irrpt071707.pdf.

Delaware Air Quality Management PM2.5 Indian River MiniVol Study, Final Report. Betsy Frey, 

Air Surveillance Branch, Air Quality Management Section, Division of Air and Waste 

 

13 During the fall 2011 season, the NRG Energy power plant was not operating while engineering upgrades 

designed to reduce pollutant emissions were installed. The fall 2012 sampling period was conducted while the 

power plant was operational, though not at 100% capacity.

14 Critic chides cancer study: Indian River plant results called lame. Delawareonline, May 28, 2013:

http://www.delawareonline.com/article/20130528/NEWS/305280081/
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Management, Delaware Department of Natural Resources and Environmental Control, May 21, 

2008.

Delaware Air Quality Management PM2.5 Indian River MiniVol Study

Lung Cancer in Sussex County, Delaware: Findings from the Indian River Community-Level 

Survey (IRCLS). Delaware Health and Social Services, Division of Public Health, November 2009.

http://dhss.delaware.gov/dph/dpc/files/ircls_finalreport.pdf

Millsboro Inhalation Exposure and Biomonitoring Study. Delaware Department of Natural 

Resources and Environmental Control, Prepared by RTI International for State of Delaware

Department of Natural Resources and Environmental Control, Department of Health and Social 

Services, Dover, DE, May 28, 2013.

http://www.dnrec.delaware.gov/Admin/Documents/Millsboro_Inhalation_Exposure_and_Biom

onitoring_Study_Final_Repor_05282013.pdf

Millsboro Inhalation and Biomonitoring Report finds air pollution coming into Delaware 

problematic; “Personal air,” indoor sources contributed most to toxic exposure. Delaware.gov, 

May 29th, 2013.

http://news.delaware.gov/2013/05/29/millsboro-inhalation-and-biomonitoring-report-finds-air-pollutioncoming-into-delaware-problematic-%E2%80%9Cpersonal-air%E2%80%9D-indoor-sources-contributed-mostto-toxic-exposure/

First Energy’s Bruce Mansfield Power Plant, Little Blue Run 

Impoundment, Shippingport, Greene Township, 

Pennsylvania

Implicated Activity: Disposal, Little Blue Run Surface Impoundment (a proven damage case 

on account of groundwater contamination).

Description: A history of recurring particulate emission incidents and fugitive dust violations.

Status: Active (Impoundment slated to become inactive and start closure on January 1, 2017.)

Impact Summary: Records provided by FirstEnergy showed that the Bruce Mansfield plant 

released harmful and illegal air pollution at least 257 times between November 22, 2002 and 

March 29, 2007. A stakeholder who lives within one mile of First Energy's Little Blue Run Fly 

Ash Impoundment testified:
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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’We had a dry spell in 1993. First Energy employees knocked on our door and told us to 

make sure we washed the vegetables from our garden and to stay indoors as much as 

possible. It seemed that because of the dry, cold weather and low water level in the 

impoundment, the fly ash, normally in a wet slurry form, had dried to a fine powder and 

blown through the air covering Hookstown and Georgetown in a layer of dust.’15 

“In (March) 2009, dry conditions on the surface of the Impoundment covered nearby 

residents’ homes in a layer of coal ash fugitive dust, prompting a NOV.” 

Study: Analyses of the exposed CCR collected on February 2, 1993 from the surface of the 

Impoundment, yielded, among others 18 ppm arsenic, 33 ppm chromium, 3.2 ppm lead, 18 

ppm nickel, and 1.5 ppm selenium. 

Regulatory and Legal Response: PADEP issued several NOVs for groundwater

contamination and fugitive dust; the earliest NOV on hand is a March 8, 1993 PA Air Quality 

Control/DENR letter to the Bruce Mansfield Power Company indicating violations of Sections 

6.1 (a), 6.1(b) and 8 of the Air Pollution Control Act, and violations of 25 Pa Code $$123.1(a) and 

123.2, that have occurred in the Impoundment, between January 30 and February 4, 1993. 

Subfreezing temperatures combined with strong winds lifted up CCR (gypsum, lime, limestone, 

and possibly, calcium sulfite) from an elevated bar in the Impoundment, generating heavy dust 

clouds that settled on adjacent properties, barns and range areas. It lead state and local officials 

to issue an air advisory for Greene Township and Hookstown. The advisory recommended that 

people stay indoors, especially those with respiratory problems, and those that have to be 

outdoors, protect themselves with a mask to avoid breathing in the dust. FirstEnergy responded 

by raising the water levels in the impoundment and by spraying a dust-inhibiting chemical on 

the sludge. The Company also said it is willing to provide lodging or other assistance for 

affected residents.

On March 12, 2009, Waste Management SW Region/DENR issued another NOV alleging 

violation, on March 4, 2009, of §§ 289.271(a)(7); and the Solid Waste Management Act, July 7, 

1980, P.L. 380, as amended, 35 P.S. §§ 6018.101-6018.1003, for a repeat of the 1993 dust 

dispersion event under similar circumstances (subfreezing temperatures combined with high 

winds, resulting in settling of significant amounts of CCRs on the ground, houses, lawns, decks, 

and automobiles). First Energy applied wetting of the Impoundment and latex soil cementing 

agent for mitigation/control. PADEP required First Energy to modify its permitted nuisance 

control plan and submit regular documentation on inspections and corrective actions to reduce 

dusting potential, and a $24,500 penalty was imposed. In addition, PADEP required a 

 

15 David Sulkowski’s testimonial: CCR proposed rule Pittsburgh Public Hearing, September 21, 2010, Pp. 81-83. 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/transcripts/transcript-pittsburgh-pa.pdf
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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modification of the permit requiring more frequent inspections by FirstEnergy to reduce 

dusting potential. FirstEnergy responded to the NOV and corrected the situation.

16

The Consent Decree issued by PADEP against FirstEnergy on July 26, 2012 required, among 

others, that FirstEnergy conduct monitoring sufficient to ensure that operation of the

Impoundment will not cause or contribute to an exceedance of Ambient Air Quality Standards, 

in accordance with Section 131.1 of PADEP’s regulations, 25 Pa. Code § 131.3.17

References:

Arlington, VA, Public Hearing, August 30, 2010: 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

Pittsburgh, PA, Public Hearing, September 21, 2010: 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

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. Environmental Integrity Project, Earthjustice and Sierra Club, August 26, 

2010. 

http://www.environmentalintegrity.org/news_reports/08_26_10.php

Lisa Evans, EarthJustice, May 18, 2011 email to A. Livnat, EPA/OSWER.

PADEP’s comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0201.

 

16 PADEP’s comment to the 2011 NODA docket, EPA-HQ-RCRA-2011-0392-0201: Commonwealth of Pennsylvania 

Department of Environmental Protection Southwest Region: 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, Thirty-nine New Damage Cases of Contamination, From Improperly Disposed Coal Combustion 

Waste August 26, 2010; Page 26.

17 http://www.environmentalintegrity.org/news_reports/documents/FirstEnergyConsentDecreeFinal1.pdf, section 

(k). ‘No later than ninety (90) days following entry of this Consent Decree, FirstEnergy shall submit for approval by 

the Department a plan for the establishment of a fugitive particulate monitoring system for the Impoundment. The 

plan shall propose monitoring site locations of sufficient number and spatial distribution to accurately determine 

the rates at which particulate emissions from the Impoundment are deposited in peripheral areas, and that 

monitors shall be constructed in conformance with the standards of ASTM D 1739-98. The location of the 

monitoring sites shall be initially based on a wind rose of the area derived from climatological data recorded at the 

nearest National Weather Service weather station. The plan shall further propose specifications for, and a location 

for the installation of, a meteorological monitoring station near the Impoundment that conforms to the provisions 

of “Meteorological Monitoring Guidance for Regulatory Modeling Applications”, EPA-454/R-99-005, US 

Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC, 

February 2000. FirstEnergy shall prepare and submit to the Department a quarterly report of all particulate 

monitoring results, no later than the last day of April, July, October and January of each year. Upon completion of 

one calendar year of meteorological monitoring data collection, FirstEnergy shall submit to the Department a reevaluation of the fugitive particulate monitoring system based on the site-specific data.’
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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Mitchell Power Station, Allegheny Energy, Courtney, 

Pennsylvania

Implicated Activity: Disposal (landfill).

Description: None available.

Status: Active (issue addressed?)(A potential damage case on account of groundwater 

contamination).

Impact Summary: Unknown.

Study: None.

Regulatory and Legal Response: In 2001, PADEP issued a NOV for failure to minimize 

fugitive dust emissions from a Landfill NW of the power plant. Once the power plant improved 

its dust suppression methods, monitoring requirements for fugitive dust emissions were 

discontinued in 2004. There are no current administrative rulings or court decisions associated 

with the site.

References:

Out of Control: Mounting Damages from Coal Ash Waste Sites, Thirty-one New Damage Cases 

of Contamination from Improperly Disposed Coal Combustion Waste. Environmental Integrity 

Project and EarthJustice. February 24, 2010.

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

La Belle, Luzerne Township, Fayette County, Pennsylvania 

Implicated Activity: Haulage and off-site disposal in a minefill and impoundment in a coal 

refuse and CCR disposal area, abandoned coal strip mine. (In addition, exceedance of the 

applicable groundwater and surface water standards.)

Description: Three foci of fugitive dust issues: (1) barge haul and downloading at the La Belle 

dock; (2) trucking from the dock to the reclaimed mine disposal site; and (3) airborne dust from 

the reclamation site.
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

15

Rejected coal and coarse and fine refuse was deposited at this site for an unknown number of 

years until the coal preparation plant ceased operation in 1994. It is estimated that 

approximately 40 million tons of coal waste material has been dumped on a 300‐acre site in 

depths of up to 150 feet.18 “The fine coal refuse was deposited in two large impoundments that 

are contained by massive embankments of coarse coal refuse. When operations ceased, the 

site was left in an abandoned, partially reclaimed condition with stability problems concerning 

one of the fine coal refuse impoundments.19 In 1996, Matt Canastrale Contracting, Inc. (MCC)

purchased the bankrupted LaBelle coal refuse landfill. The final sale was contingent upon site 

reclamation. It was decided to utilize coal ash in order to stabilized the impoundment and 

address the issues of water pollution.

The disposal site20 accepts material from Allegheny Energy's Hatfield's Ferry coal-fired power 

plant in Greene County and from other power plants: Mitchell (FGD sulfite), Hatfield, and 

Elrama power plants, as well as from the Fayette and Greensburg thermal plants. In addition, 

First Energy, the operator of a power plant 75 miles north, plans to deposit more than 3 million 

tons of additional coal ash here every year starting in 2017, when its 1,300-acre Little Blue Run 

coal ash impoundment in Beaver County closes.

 

Status: Active.

Impact Summary: Both the General Permit WMGR052 and the Coal Refuse Mining Permit 

#26970702 strictly prohibit fugitive dust emissions from leaving the site:“[a]ll trucks which 

transport coal ash shall be covered with a suitable covering to minimize dust emissions during 

transit from each generating station to the disposal site.” However, residents have not seen any 

trucks covered since the start of the coal ash dumping at the LaBelle site in 1998. And recently 

the LaBelle site excavator, Richard Lawson, admitted at a community meeting that he chose not 

to tarp any of the trucks believing that the tarps created more dust.21

 

18 According to a BNA (March 2013) article, the site contains two vast piles of coal processing waste, known as “gob 

piles,’’ with 40 million tons of refuse.

19 The impoundment of concern has a footprint of approximately 24 acres and a contributing drainage area of 

approximately 87 acres. Comparison of pre‐landfill mapping, post‐1994 aerial photography, and drilling at various 

dates results in an impoundment depth range from 60 to 100 feet, averaging 74 feet. Several feet of standing 

water, contributed by precipitation falling on the surface of the drainage area, are present at all times in the 

impoundment and this water is loading the fine coal refuse and the laterally‐confining coarse refuse. As early as 

1984, the eastern slope of the coarse refuse embankment began to show signs of movement and various 

engineering plans were designed and implemented to some degree before the site was abandoned in 1994.

20 The site comprises 361.5 ‐ acres as coal refuse disposal area and 145.2 ‐ acres as support area – coal ash and 

FGD disposal/reprocessing.

21 Community Meeting at the Luzerne Township Volunteer Fire Hall, October 28, 2010.
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

16

Large loads of fly ash arrive in open, uncovered barges,

22 are unloaded onto trucks, with the 

crane sometimes dropping the ash onto the shoreline of the Monongahela River. Loaded trucks 

motor near a La Belle neighborhood in Luzerne Township without anything covering the fly ash 

as it's taken to a hilltop where it is dumped and left uncovered.

Instead of decreasing the fugitive dust emissions as the operator and his experts predicted, the 

emissions from the disposal site have actually increased as the low permeability cementitious 

(LPC) coal ash has been dumped. Hundreds of acres of coal ash are allowed to dry, over time, 

especially during hot, summer months. The dried ash becomes airborne and blankets the local 

communities in clouds of grey coal ash.23 Winters winds carry the coal ash off the hilltop onto 

residents’ properties.

Up the hill from the barge-unloading facility, LaBelle residents complain often about dust that 

settles on their properties and hangs in the air. Downwind from the dump site in Sauerkraut Hill 

residents say there are nine cases of cancer in the 18 houses, and in LaBelle there is a 

prevalence of pulmonary sicknesses. In La Belle, ash-like powder accumulates on window sills of 

houses, on appliances inside garages, and on apples trees in the yards. In summer months,

swimming-pool filter cartridges have to be changed daily, instead of every two weeks, as 

recommended, because the previous day's filters are stained black. 

Study: A sample of fly ash taken from the La Belle disposal site and tested by a local company, 

R.J. Lee Group, shows presence of arsenic and several heavy metals, most significantly lead. 

These represent levels in the actual ash, and not amounts found in the air or on neighboring 

properties. While there's no scientific proof that fly ash or other forms of pollution are causing 

health problems, Luzerne Township has elevated mortality levels for diseases that have been 

linked to pollution exposure, according to the Post-Gazette ecological study on mortality rates. 

Luzerne had 170 heart-disease deaths from 2000 through 2008, or 26 percent higher than the 

national average, which would project 135 deaths.

Regulatory and Legal Response: Uncovered trucks are a clear violation of the existing 

permits, and yet there have been no violations or fines issued by the PADEP. A petitions signed 

by 93 La Belle-area residents was sent to PADEP to seek an investigation and force the owner to 

clean up the process. PADEP officials investigated and ordered the company to dampen roads 

to reduce dust. Local residents believe, however, that PADEP's actions, to date, have been 

insufficient to correct the problems and protect the public. In October 2010, PADEP and 

concerned citizens toured the fly ash depot. 

 

22 In May 2006, a barge, presumably with a coal ash shipment from the Mitchell power plant sunk at the docking 

site, releasing tons of fly ash into the Monongahela River (EPA-HQ-RCRA-2006-0796 -0443 and EPA-HQ-RCRA2009-0640-8243, page 17.)

23 EPA-HQ-RCRA-2009-0640-8243, pp. 14-17.
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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A Notice of Violations and Notice of Intent to Sue was issued on March 13, 2013 by EIP for 

Citizens Coal Council against MCC for Violations of the Clean Streams Law, Air Pollution Control 

Act, the Resource Conservation and Recovery Act, the Clean Air Act, and Pennsylvania's Law 

Implementing the Requirements of the Surface Mining and Reclamation Act at the LaBelle, PA 

Coal Waste Mine Dump in Luzerne Township, PA. The lawsuit would be filed in the U.S. District 

Court for the Western District of Pennsylvania and would ask the court to require MCC to abate 

the alleged violations. In addition, Citizens Coal Council would ask the court to bar future 

violations and to impose civil penalties and award attorneys' fees.24 On June 26, 2013, Public 

Justice and Environmental Integrity Project (EIP), representing Citizens Coal Council, filed a 

citizens' suit against (MCC).25 In September 30, 2014, the U.S. District Court, W.D. Pennsylvania 

rejected the Motion to Dismiss filed by Defendant, Matt Canestrale Contracting, Inc. ("MCC"), 

pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction.26

References:

‘Large loads in La Belle’, December 16, 2010, Pittsburgh Post-Gazette: http://www.postgazette.com/pg/10350/1109211-114.stm#ixzz18IksbbGA; 

G. Kuklish, comment EPA-HQ-RCRA-2009-0640-8243; ‘Large loads in La Belle’, March 29, 2012, 

Pittsburgh Post-Gazette: http://www.post-gazette.com/stories/news/health/large-loads-in-labelle-277904/

Notice of Violation and Notice of Intent to Sue Matt Canestralle Contracting, Inc., March 23, 

2013:

http://www.environmentalintegrity.org/news_reports/documents/LabelleNoticeLetter2013031

3.pdf

 

24 PA Contractor Faces Possible Lawsuit for Violations of Federal & State Pollution Laws at Coal Mine Dump, EIP 

News and Reports, March 13, 2013: http://environmentalintegrity.org/archives/6130

25 Citizens Coal Council v. Matt Canestrale Contracting, Inc. Public Justice. Complaint filed June 26, 2013:

http://publicjustice.net/content/citizens-coal-council-v-matt-canestrale-contracting-inc and 

http://www.environmentalintegrity.org/news_reports/documents/2013_06_26_FINAL_CCC%20Canestrale%20Co

mplaint.pdf

26 Citizens Coal Council, Plaintiff, V. Matt Canestrale Contracting, Inc., Defendant. LEAGLE:

http://leagle.com/decision/In%20FDCO%2020141006940/CITIZENS%20COAL%20COUNCIL%20v.%20MATT%20CAN

ESTRALE%20CONTRACTING,%20INC. Plaintiff, Citizens Coal Council ("CCC"), brought this action under the citizen 

suit provision of the Resource Conservation and Recovery Act, 42 U.S.C. §6972(a)(1)(B) ("RCRA"), to abate an 

imminent and substantial endangerment to health or the environment allegedly caused by solid waste located on 

the LaBelle Coal Refuse Disposal Area, currently owned and operated by MCC. Plaintiff also asserts violations of 

various Pennsylvania statutes by MCC. For the reasons that follow, the Court will deny Defendant's motion to 

dismiss. The Court found that the Amended Complaint alleges sufficient facts to show that Plaintiff has asserted a 

plausible claim under ISE citizen suit provision of the RCRA, 42 U.S.C. §6972(a)(1)(B), to withstand MCC's motion to 

dismiss under Rule 12(b)(6). An appropriate order will follow.
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=29991193&vname=dennotallissu

es&jd=a0d6x4x2x1&split=0

Rostosky Ridge Road Collapse of CCR Pile, Forward 

Township, Allegheny County, Pennsylvania 

Implicated Activity: Piling for beneficial use.

Description: Fly ash and “bottom ash” were removed from Allegheny Energy’s Mitchell Power 

Plant and dispose of at River Hill Road in Forward Township to be used by the PA DOT for the 

maintenance of River Hill Road, and specifically as structural material for construction of the 

roadway, its embankment, and adjacent slope. A collapse of the ash pile was triggered by a 

break in the water main under River Hill Road. On January 25, 2005, thousands of tons of fly ash 

slid down a hillside and flowed into a creek and through a neighborhood located on Rostosky 

Ridge Road.

27 Approximately nine homes, a business (restaurant), and a mile of the creek were 

directly impacted by the landslide, which deposited large piles of fly ash in residential yards, 

flower beds, culverts, play areas, around garages and along the creek banks. Cleanup 

immediately following the slide in 2005 included removal and disposal of 1,500 tons of ash from 

the public parking lot at Gallatin Sunnyside Park, the commercial and affected residential 

properties on Rostosky Ridge Road, as well as from roadways, culverts, and creek banks.

During the first week after the landslide, residents used township equipment to remove some 

of the fly ash from driveways, walkways, parking lots, and roadways, generally w/o the use of 

any protective gear. An uncovered dump truck transported the fly ash to a nearby ball field. 

The local fire department helped with wetting the streets to keep down dust levels. 

Following this initial removal effort, PADEP contracted to remove the fly ash from the affected 

neighborhood yards, roadways, creek banks, and ball field. From January 2006 through August 

2006, the DEP removed 40,000 tons of ash from the embankment, eliminating any risk of 

another release of fly ash from the slide area. When feasible, the PADEP contractor removed 

the fly ash with a vacuum truck and small equipment such as skid-loaders, mini-excavators, and 

backhoes. Hand tools such as rakes, shovels, and hoes were also used to remove the fly ash. 

The affected areas near the creek banks and culverts were flushed with water, allowing the fly 

 

27 The slide occurred when the old coal ash embankment adjacent to River Hill Road collapsed and temporarily 

dammed the stream at the embankment's base. When the ash dam failed, the ground broke loose and water, 

slurry and tree branches rushed down the hill onto Rostosky Ridge Road, just off Route 136. Some water and 

debris from the slide spilled onto Route 136 near Rapp's Restaurant.
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

19

ash deposits to enter the creek water. Nearly five years after the coal ash slide incident, work 

was expected to begin to remove the final remains of that slide.28

Status: Inactive (a one-time incident.)

Impact Summary: Following the landslide, residents stated that they were ill with a variety 

of flu-like symptoms, including sore throat, cough, fever, nausea, fatigue, diarrhea, and 

headaches.

Study: Based on a petition for a public health evaluation of the fly ash landslide, in March 

2005, ATSDR conducted a preliminary review of available data, on the basis of which ATSDR 

classified the landslide site as a potential health hazard and made several recommendations, 

among which were removal of the remaining fly ash from the affected neighborhood and postremoval confirmatory sampling. ATSDR also agreed to complete a formal written health 

consultation evaluating all available data following the post-removal confirmatory sampling.29

Eleven samples were measured for PM10 in outdoor air. Because samples were not necessarily 

collected during fly ash removal activities, results may not represent peak exposure levels. The 

maximum PM10 24-hour average air concentration was 36.4 μg/m3, which is below EPA’s PM10 

24-hour average NAAQS of 150 μg/m3. It is not known what levels of PM2.5 were associated 

with measured PM10 levels. However, even assuming all of the particulate matter was <2.5 

microns, the measured levels are also below EPA’s PM2.5 24-hour average NAAQS of 65 μg/m3. 

The limited air data suggests exposures to PM10 levels are not likely to be harmful to human 

health.

However, past exposures to fine particulate matter immediately following the landslide and 

during removal activities may have been at levels of health concern. Many epidemiologic 

studies have found consistent associations between exposure and harmful health effects for 

short-term, or acute, exposures (usually measured in days) to fine particulate matter. Acute 

exposures to fine particulate matter may also aggravate pre-existing respiratory conditions in 

sensitive individuals. Although measured PM10 levels from the one residential yard were below 

NAAQS values, the air measurements were not necessarily collected during peak exposure 

periods when residents were shoveling and removing fly ash from their yards. ATSDR considers 

it plausible that fine particles in the fly ash may have acted as a respiratory irritant in exposed 

adults and children during that time.

Following the landslide, fly ash could have been brought into vehicles and homes on the 

feet of family members and pets. In fact, during a February 2005 site visit, ATSDR staff 

 

28 Final fly ash clean-up begins - Pittsburgh Tribune-Review, January 18, 2010.

http://www.pittsburghlive.com/x/valleyindependent/news/s_662812.html#ixzz1mDyrFKOx

29 ATSDR Health Consultation: Coal Fly Ash Landslide, Forward Township, Allegheny County, Pennsylvania, June 1, 

2006: http://www.atsdr.cdc.gov/HAC/pha/CoalFlyAshLandslide/CoalFlyAshLandslideHC060106.pdf
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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witnessed fly ash dust and indoor tracking of dirt into homes and cars in the affected 

neighborhood. Suspended fly ash particles in outdoor air could have entered a home 

through indoor-outdoor air exchange. A young child playing on a home’s floor will have 

the maximum opportunity for ingestion, inhalation, and dermal exposure to dust. 

An environmental services company engaged by legal counsel representing the affected 

residents conducted an interior home sampling investigation. In February, March, and April 

2005, interior dust wipe samples from the surface of carpets, countertops, tables, windowsills, 

fans, furnace filters, and vacuum cleaner bags were collected by residents and sent for arsenic 

analysis. Arsenic was detected in some of the samples. Follow-up sampling in July 2005 also 

detected arsenic in dust wipe samples. Detections of arsenic in dust wipe samples are an 

indication that arsenic was, at some point, distributed throughout the home and was accessible 

to the occupants. 

Results of the analysis of the urinary arsenic levels measured indicate that the participants 

were not exposed to high levels of arsenic two to three days prior to their urine collection. 

However, the urinary sampling time does not represent the time of peak exposure levels. 

None of the arsenic concentrations in toenails or fingernails exceeded the published 

reference ranges. However, because of the length of time required for nail growth, the 

results from the nail samples did not reflect peak exposure times at the site. 

In July 2005, the Allegheny County Health Department issued a study, based on information 

and samples collected in March-April of that year.

30 The study tested for arsenic in urine, hair, 

and nail samples collected from potentially affected residents between February 5 and early 

April, 2005. 

Overall, the biological testing of both studies was conducted to address community concerns 

about arsenic exposures following the landslide event. However, the timing of the biological 

testing does not allow these community concerns to be addressed.

Regulatory and Legal Response: In October 2006, residents along Rostosky Ridge Road 

and a portion of Rainbow Run Road filed a lawsuit in Allegheny County Court in an effort to 

force PADEP to clean the site. The suit claimed the PADEP violated the Clean Streams Act, the 

Air Pollution and Control Act and the Hazardous Sites Cleanup Act and created a private and 

public nuisance.31

 

30 Results of the Health Investigation Following Fly Ash Contamination in Forward Township, Allegheny County, 

Pennsylvania: http://academics.rmu.edu/faculty/short/research/arsenic/ACHD-Arsenic-2005.pdf.

31 The suit also named as defendants: Allegheny Energy, owner of the fly ash that had been generated at the 

company's Mitchell Power Station; the state Department of Transportation, for using fly ash to stabilize River Hill 

Road and maintaining the hazardous substance within its right-of-way and/or embankment supporting the road; 

the Municipal Authority of Westmoreland County (MAWC), because its water main ruptured, bringing the fly ash 

hillside down into the neighborhood; and Weavertown Environmental Group, because of alleged "negligent 

remediation at the site, which caused further harm.”
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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The state maintained that tests previously conducted by the Allegheny County Department of 

Health found low levels of arsenic - consistent with an area where coal is burned to produce 

electricity. The agreement32 called for more than $3 million in claims and damages to be paid to 

the commonwealth and to 25 residents on or near Rostosky Ridge Road. The commonwealth 

received approximately $1.8 million for cleanup costs and monitoring, with the rest going to the 

residents for compensation and damages. 

References:

Barbara J. Diess comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0424.

Health Consultation: Coal Fly Ash Landslide, Forward Township, Allegheny County, Pennsylvania: 

ATSDR, June 1, 2006.

East End Landfill (aka East End Resource Recovery), 1820 

Darbytown Road, Henrico County, Virginia 

Implicated Activity: Landfill disposal and structural fill.

Description: A landfill permitted only for C&D debris has been stockpiling and disposing of 

coal ash for nearly two years without a permit from the county. The landfill, operating since 

1987 and located about 200 m from the closest residential area, accepts C&D debris from 

within a 150-mile radius of Richmond. 

As of July 2009, the company (“TEEL”), however, had approval from the Virginia DEQ to use 

the materials as embankment, daily cover and firebreak material, as well as a structural fill to 

stabilize the 108 acres former, old Richmond City landfill while it is being excavated as part of 

a remediation process; after the company's petition for a 180-day trial to use the material, in 

March 2010 DEQ approved the landfill's request for permanent use33. Under previous 

violations, the company was fined more than $100,000 by the DEQ “in the previous year”.

 

32 September 15, 2009: http://www.newspapers.com/newspage/36312281/

33 DEQ also approved incinerator fly ash, bottom ash, nonhazardous contaminated soil and petroleumcontaminated soil as acceptable cover materials and shredded tires as a drainage material. The use of CCBs is 

exempt from Virginia’s Solid Waste management regulations when used in combination with a cementitious 

binder.
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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In December 2010, the Henrico County Board of Zoning Appeals denied a permit to deposit coal 

ash at the landfill.34 After that decision, however, the company continued to bring more ash to 

the site.

Status: Active.

Impact Summary: Residents near the landfill have raised many concerns about coal ash 

being dumped near their homes, which has caused unsafe levels of dust and potential 

groundwater contamination. From 2008 to 2011, neighbors complained about a persistent 

rotten-egg smell, potential health hazards from coal ash stored at the landfill being blown into 

neighborhoods, and mud being tracked by trucks onto nearby roads.

Paragraph (19) of the County’s late April 2011 filing of a complaint against TEEL at the Circuit 

Court of the County of Henrico states: “There is clearly observable harm from TEEL’s 

continued receipt, storage and use of these materials (CCBs) at the property. See, e.g., Exhibit 

8 (April 4,2011 video shot by County inspector showing massive quantities of fly ash blowing 

from the site).”

Study: None.

Regulatory and Legal Response: In 2009, the Virginia Department of Environmental 

Quality penalized the landfill’s operator more than $100,000 for numerous site violations.35

In February 2011, the East End Landfill was issued a zoning violation. In April 2011, the Henrico 

County Board of Zoning upheld the zoning board NOV that orders the removal of piles of coal 

ash by June 30, 2011. Henrico County officials also filed a complaint against the landfill, 

initiating a process to obtain a temporary injunction to get the company to stop taking more 

coal ash at the site and to find a way to keep the ash from being spread by wind.36 

 

34 http://www2.timesdispatch.com/news/2010/dec/16/henrico-panel-denies-landfill-permit-coal-ash-ar-720607/ 

and http://www2.timesdispatch.com/news/2010/dec/17/TDMAIN01-henrico-panel-denies-landfill-permit-for--ar721709/

35 Henrico landfill looks to expand. Timesdispatch.com, June 27, 2013: 

http://www.timesdispatch.com/news/local/henrico/henrico-landfill-looks-to-expand/article_6c2a2505-d94a-54cc86f6-668befe023ff.html

36 Complaint attached to original email message from Lisa Evans, EarthJustice. See also 

http://www2.timesdispatch.com/news/2011/apr/28/1/henrico-board-denies-landfills-petition-to-take-co-ar1002839/
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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In June 2013, the county’s Board of Zoning Appeals voted to grant an expansion of the site’s 

waste disposal area despite sizable opposition from neighbors, claiming a turnaround in the 

quality of the site’s management since it has changed hands in 2011.37

References:

May 19, 2011 email from Lisa Evans, EarthJustice, to A. Livnat, EPA/OSWER.

Fort Martin Power Plant, Fort Martin, West Virginia

Implicated Activity: Disposal and haulage.

Description: Clouds of coal dust and fly ash blowing in the wind and dispersed by 50 coal ash 

trucks per hour on the highway from disposal and haulage. All four nearby streams are polluted 

by CCRs.

Status: Active.

Impact Summary: No information.

Study: None.

Regulatory and Legal Response: “WVDEP did not respond to any complaint letters nor 

have they taken any action.” WVDEP responded that they are aware of the issues that are in 

the complaint. WVDEP stated that they have followed up on all the complaints that they have 

received for this area. WVDEP has not observed an impact from coal combustion residuals at 

this time. There are berms on the highway in the area, which do not contain coal combustion 

residuals that have been observed to create dust clouds when trucks run into them. This 

information has been passed to the Department of Highway.38

References:

 

37 Henrico zoning board OKs expansion for landfill. Times Dispatch.com, June 29, 2013. 

http://www.timesdispatch.com/news/local/henrico/henrico-zoning-board-oks-expansion-forlandfill/article_431f8880-40b3-5ea4-973f-6337665bf5b8.html

38 August 29, 2011 email from Rick Rogers, EPA R3 to A. Livnat, EPA/OSWER.
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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Pittsburgh, PA, September 21, 2010 Public Hearing:

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

August 29, 2011 email from Rick Rogers, EPA R3 to A. Livnat, EPA/OSWER.

EPA Region 4

Arrowhead Landfill, Uniontown, Perry County, Alabama

Implicated Activity: Disposal (landfill) and beneficial use; haulage.

Description: The Arrowhead landfill has been taking TVA Kingston’s 2008 ash spill waste, and 

using it as a landfill cover. Concerns were raised over fugitive dust and drinking water wells 

from waste disposal; it is also an environmental justice issue, as there is no air monitoring in the 

poor, black-American community, whereas respirators are used by workers at the CCR source 

location (in Kingston, TN). According to Earthjustice “...the ash was dumped in mounds as high 

as 60’ without nothing covering them.” Whereas shipments of TVA ash waste to the Perry 

County Landfill ended in late 2010, the residents are experiencing health problems that they 

believe are due to the improper disposal of the ash. “Levels of arsenic at more than 80 times 

the safe drinking water standards have been found in runoff near the LF.”39 Similar evidence 

was recorded by the Institute for Southern Studies.40

Status: Active.

Impact Summary: According to the May 2013 complaint, the impacts resulting from the 

activities authorized by Permit No. 53-03 include odors; increased populations of flies in and 

around the homes of many of the Complainants that are bothersome and that may be carriers 

of dozens of infectious viruses, bacteria, and parasites; increased populations of birds around 

the homes of many of the Complainants that deposit droppings and that may be carriers of 

dozens of infectious viruses, bacteria, and parasites; increased noise from operation of heavy 

machinery; decreased property values of many of the Complainants; and the frequent emission 

of fugitive dust from the landfill that causes particulate deposition on personal and real 

property of many of the Complainants, including homes, porches, vehicles, laundry, and 

 

39 February 10, 2012 blog post: http://earthjustice.org/blog/2012-february/tr-ash-talk-dumping-a-civil-rights-issue

40 Complaint cites health threats at Alabama dump taking TVA's spilled coal ash. Facing South, February 17, 2010:

http://www.southernstudies.org/2010/02/complaint-cites-health-threats-at-alabama-dump-taking-tvas-spilledcoal-ash.html
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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plantings. Dust and odors from the landfill caused residents of Uniontown to experience health 

problems, including respiratory illness, headaches, dizziness, nausea and vomiting.41

Study: None.

Regulatory and Legal Response: On January 3, 2012, 54 individuals from Perry County 

filed a Title VI Complaint,

42 concerned that environmental injustice incurred through permitting 

the disposal of 15,000 ton/day (municipal, non-hazardous commercial, and industrial) from 35 

states; specifically, CCRs from Kingston, TN, a white majority, middle-class County, for disposal 

in a poor, high-minority population county in Alabama. This operation results, among others, in 

bad odors, noise, and frequent emissions of fugitive dust that causes particulate deposition on 

personal and real property of many Complainants, including homes, porches, vehicles, laundry, 

and plantings, all resulting in lowering of property values.43 The complaint asks EPA to revoke 

funds that it gave to ADEM for its discriminatory actions, though the overall removal plan was 

authorized by EPA under Superfund.

On May 30, 2013, a complaint was filed by the law firm David A. Ludder, representing 34 

complainants, pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7, 

and 40 C.F.R. Part 7, alleging that the Alabama Department of Environmental Management 

(ADEM) violated Title VI and EPA’s implementing regulations by reissuing and modifying, on 

September 27, 2011 and February 3, 2012 respectively, Solid Waste Disposal Facility Permit No. 

53-03 authorizing Perry County Associates, LLC to construct and operate the Arrowhead 

Landfill, a municipal solid waste landfill in Perry County, Alabama which has the effect of 

adversely and disparately impacting African-American residents in the adjacent community.44

If a violation is found and ADEM is unable to demonstrate a substantial, legitimate justification 

for its action and to voluntarily implement a less discriminatory alternative that is practicable, 

Complainants petition EPA to initiate proceedings to deny, annul, suspend, or terminate EPA 

financial assistance to ADEM. 45

 

41 Ash in Lungs: How Breathing Coal Ash is Hazardous to Your Health. Alan H. Lockwood and Lisa Evans, Physicians 

for Social Responsibility and EarthJustice. August 1, 2014:

http://www.psr.org/news-events/homepage-story-archive.html?page=2

42 Alabama faces civil rights complaint over landfill taking waste from TVA coal ash disaster. Facing South, January 

5, 2012:

http://www.southernstudies.org/2012/01/alabama-faces-civil-rights-complaint-over-landfill-taking-waste-fromtva-coal-ash-disaster.h. Title VI prohibits recipients of federal funds from engaging in discriminatory activity. 

Alabama Department of Environmental Management Permitting of Arrowhead Landfill in Arrowhead County, 

submitted to EPA’s Office of Civil Rights on 1/12/2012:

http://insideepa.com/iwpfile.html?file=feb2012%2Fepa2012_0293a.pdf.

43 Exhibit F: Dust video, at http://www.enviro-lawyer.com/News-LandOfficeNews.html

44 While the Harriman, Tennessee, community where the Kingston spill occurred is almost entirely white (91 

percent) and middle class (median income $36,031), Uniontown is 90 percent African American, and 45.2 percent 

of its citizens live below the poverty line (median income $17,473). Ash in Lungs, ibid.

45 http://insideepa.com/iwpfile.html?file=jul2013%2Fepa2013_1199b.pdf
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According to the complaint, the first alleged discriminatory act is the reissuance (renewal) of 

Solid Waste Disposal Facility Permit No. 53-03 by ADEM to Perry County Associates, LLC on 

September 27, 2011. The second alleged discriminatory act is the modification of Permit No. 

53-03 by ADEM on February 3, 2012. The permit modification authorizes Perry County 

Associates, LLC to expand the disposal area at the Arrowhead Landfill by 169.179 acres (66%).

In 2010, certain residents of Perry County filed a civil action in the U.S. District Court for the 

Southern District of Alabama, Northern Division, against Phill-Con Services, LLC, the operator of 

the Arrowhead Landfill, to enforce an emission standard or limitation under the Clean Air Act, 

42 U.S.C. 7401–7671q, and to enforce a standard, regulation, requirement, or prohibition under 

the Solid Waste Disposal Act, 42 U.S.C. 6901-6992k.

On September 26, 2012, EPA dismissed the September 27, 2011 and February 3, 2012 

complaints without prejudice to refiling “within 60 days following termination or conclusion of” 

the aforesaid litigation. The foregoing litigation was terminated on April 16, 2013. EPA 

determined that ADEM has ample authority to regulate and control fugitive dust emissions

from landfills. Although ADEM’s fugitive dust rule was declared to be unconstitutional by the 

Alabama Supreme Court in Ross Neely Express, Inc. v. Alabama Department of Environmental 

Management, 437 So.2d 82 (Ala. 1983), Alabama has neither repealed the rule nor sought or 

obtained EPA approval of a revision of the State Implementation Plan. Accordingly, the rule 

continues to be included in the “applicable implementation plan” under the Clean Air Act.

In the complaints filed on January 6, 2012 and February 21, 2012, Complainants also alleged 

“the frequent tracking of dirt and other solids from the landfill onto County Road 1 where 

through traffic causes the dirt and other solids to become airborne particulates resulting in 

particulate deposition on personal and real property of many of the Complainants, including 

homes, porches, vehicles, laundry, and plantings.” Subsequently, the Arrowhead Landfill 

relocated its entrance to Tayloe Road off U.S. Highway 82. This relocation has eliminated 

tracking of dirt on County Road 1.

References:

Arlington, VA, Public Hearing, August 30, 2010:

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

Duke Energy’s Riverbend Steam Plant, Mt. Holly, 

Mecklenburg CO., North Carolina

Implicated Activity: Piling for beneficial use.
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Description: Pond-dredged ash piles on side of road are a source of fugitive dust. Ash also 

used for structural fill and various road uses.

Status: Active.

Impact Summary: Complaint: “Three years ago Duke dredged out the ponds, generating 

much fugitive dust that impacted the Stonewater development. The ash was heaped in a large, 

unmonitored mound beside the Horseshoe Bend Beach Road, the only access to the peninsula. 

It is a source of fugitive dust (ash accumulating on cars, houses), and presumably – of leaching 

to groundwater, which potentially risks many of the peninsula residents’ drinking water wells.” 

Response: “DWQ was not aware of the concern. DWQ is currently looking into the concern to 

see if any action is needed.” 46

Study: None.

Regulatory and Legal Response: No information.

References:

Charlotte, NC, Public Hearing, September 14, 2010:

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

Progress Energy, Asheville (Arden), North Carolina 

Implicated Activity: Beneficial use. (A potential damage case on account of groundwater 

contamination.)

Description: According to Progress Energy’s response letter (February 9, 2009) to the January 

22, 2009 NOV, the source area is an NPDES permitted surface impoundment rather than a 

stockpile area, hence no permit conditions are violated. The fugitive dust comprises 

cenospheres that in spite of the application of dust suppressing measures (mulch with dust 

suppressant, straw and wetting) become airborne during extended periods of winter 

subfreezing temperatures, when their harvesting from the top of the frozen pond is halted. In 

response to the NOV, Progress Energy stated that they are evaluating the establishment of an 

 

46 EPA-HQ-RCRA-2011-0392-0267, North Carolina Department of Environment and Natural Resources 

(NCDENR): 
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alternate harvesting area that has more wind buffer, as well as wind break options at the 

existing harvesting area. 

Status: Active.

Impact Summary: Coal ash from waste disposal blowing and covering houses, garages and 

cars in the Lake Julian Trails housing development. One of the residents stated that after one 

bad incident Progress Energy washed everyone's house and had someone specially vacuum 

people's homes. He also stated that there was little or no enforcement, until the community 

started pushing someone to do something about it. The residents finally were able to get their 

state aquifer protection branch to issue an NOV. The power plant is supposed to be putting up 

an air monitoring system and come up with a plan to reduce dust. The power plant already 

came up with one plan to spray more and planted trees and shrubs for additional buffering.

Study: An analysis of a sample scraped off a resident’s window sill in the Julian Lake Trails 

housing development (October 5, 2010) yielded the following, selected results (all in mg/Kg): 

arsenic: 37.7; chromium: 18.2; lead: 8.2; nickel: 8.2; selenium: 2.8; mercury: 0.047. 

Regulatory and Legal Response: NC’s Division of Water Quality issued (January 22, 2009) 

a NOV of Permit WQ0000020 for failing to take adequate provisions to prevent wind erosion 

and surface runoff from conveying ash from stockpile/storage areas onto adjacent property or 

into any surface waters. This resulted in the deposition of ash on property adjacent to Progress 

Energy’s ash storage pond: ash from the ash pond had blown and accumulated on several 

properties (homes, cars and lawns) in the Lake Julian Trails housing development. 

References:

Charlotte, NC, Public Hearing, September 14, 2010:

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

Out of Control: Mounting Damages from Coal Ash Waste Sites, Thirty-one New Damage Cases 

of Contamination from Improperly Disposed Coal Combustion Waste. Environmental Integrity 

Project and EarthJustice. February 24, 2010.

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

May 19, 2011 and May 21, 2011 emails from Lisa Evans, EarthJustice, to A. Livnat, EPA/OSWER.
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Swift Creek Structural Fill Site, ReUse Technology, Inc./Full 

Circle Solutions, Inc., Rocky Mount, North Carolina

Implicated Activity: Beneficial use (structural fill). (A proven damage case on account of 

groundwater contamination.)

Description: A 25-acre beneficial use structural fill received CCRs from six North Carolina and 

Virginia power plants, operated from 1991 through at least 2001. The site did not require a 

permit from NC DENR. CCR was placed only one foot above the water table and into a wetland, 

contaminating off-site groundwater and causing off-site coal ash dust impacts to adjacent 

property.

Status: Inactive.

Impact Summary: None available.

Study: None.

Regulatory and Legal Response: In its comment to the docket47, NCDEQ conceded that 

Out of Control’s damage assessment for the Swift Creek site “appears essentially accurate.” A 

NOV and a Compliance Order were issued, but for violations unrelated to fugitive dust.

References:

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. Environmental 

Integrity Project and EarthJustice. February 24, 2010.

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

Harlan County, Kentucky

Implicated Activity: Unauthorized (?) disposal (‘structural fills’?).

Description: A large number of open, illegal coal ash dumps throughout the state. Residents 

of Harlan County, Kentucky report open dumps of CCR that are compacted with bulldozers and 

covered with dirt. The illegal CCR dumps he is referring to are located within a couple of 

 

47 North Carolina DENR: EPA-HQ-RCRA-2009-0640-9282.2, p 11.
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hundred feet of the Poore Fork of the Cumberland River and adjacent to US 119, the main road 

that links the city of Harlan and the Tri-Cities communities of Cumberland, Benham and Lynch.48

Status: Active.

Impact Summary: One observer said, “The workers who dump it and compact it do not use 

any protective equipment. Dust from it is flying around all the time.”

Study: None.

Regulatory and Legal Response: None

References:

K.A. Owens, Kentuckians for the Commonwealth (KFTC) comment to the docket: EPA-HQ-RCRA2009-0640-3934.

Louisville Gas & Electric Cane Run Power Plant, 5252 Cane 

Run Rd., Louisville, Kentucky 40216

Implicated Activity: Disposal (surface impoundments, landfill), on-site processing (ash 

treatment basin, sludge processing plant), storage (ash silo and stacks), haulage (trucks and 

roads.)

Description: During the over 50 years the Cane Run plant has been in operation, LG&E has 

constructed an unlined wet coal ash containment that is less than 100 yards from a residential 

neighborhood. Residents’ homes are covered continually with a layer of dust from fly ash.49 

The current “Ash Mountain” is projected to reach capacity in 3-years. LG&E has applied for a 

new, 60-acres/160’-high landfill, to be located 800’ from the closest residences. Currently

residents are holding community meetings on a regular basis, and the Kentucky State 

Legislature is planning to hold hearings in the community to hear residents’ concerns. Some 

 

48 According to SourceWatch: http://www.sourcewatch.org/index.php?title=Existing_U.S._Coal_Plants, the closest 

coal-fired power plants (<50 miles of US 119/Harlan-Tri City route) are: Eastman’s Kingsport PP (Eastman Chemical 

Co.), Kingsport, TN; John Sevier Fossil Plant, TN; and Cooper Power Station, KY. This is not to suggest that any of 

these plants are implicated in the cited activity.

49 Neighbors of Cane Run plant worry about health impact of coal ash Courier-Journal, April 19, 2011:

http://www.courier-journal.com/article/20110419/GREEN/304190120/Neighbors-Cane-Run-plant-worry-abouthealth-impact-coal-ash?odyssey=tab%7Ctopnews%7Cimg%7CHome
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residents said they believe LG&E officials know their plant causes ash and soot problems 

because the company has sometimes provided them with vouchers to pay for car washes. 

LG&E’s representative acknowledged the company has paid for car washing, but only rarely, 

after an unusual incident at the plant. Under its permit, the company is allowed to emit fly ash 

from its smokestack, but if ash is leaving the landfill the company can be told to fix the 

problem.50 The plant is scheduled to close by 2016: LG&E is planning to build a cleaner natural 

gas powered plant on its Cane Run property.

Status: Active.

Impact Summary: The residents experience fugitive dust from coal ash on a daily basis. 

Health problems and respiratory illnesses abound, and there are high rates of cancer.

Study: In February 2011, a Louisville Metro Air Pollution Control District inspector swabbed 

the outside sills on the front of the Little's house, about 150’ from the eastern wall of the ash 

pond, and just down the block from the black face of the ash dump. A laboratory analysis 

confirmed fly ash in three samples. Air district spokesman Matt Stull confirmed that 

investigation.

On the other hand, a preliminary round of testing in March by the state at five locations in 

Claremont Acres, east of the plant, and Riverside Gardens to the north, “did not show 

significant levels of fly ash” on homes, Hubbard (Assistant Director of the Kentucky Division of 

Waste Management, which regulates the dump) said, adding that inspectors would like to 

return “when conditions are drier.”

A study to evaluate surface dust samples deposited unto adjacent properties, ordered by LG&E 

from the RJ LEE Group, used adhesive lift samplers to collect six samples from three houses 

near the PP (4/18/2011). The SEM characterization identified significant, but variable amounts 

of fly ash and bottom ash in each of the samples, including untreated Hopper Ash and Pozotec 

(the former predominated by silicon-aluminum, and the latter - also with elevated calciumsulfur). Based on backscattered electron images and X-ray maps, the PP concluded that they 

found ‘nothing harmful in the results.’

51

In a follow up study,

52 a multi-day sampling approach was employed to monitor particle 

deposition over time and to gain knowledge on the amount of time necessary to achieve an 

 

50 According to WFPL News, July 13, 2011: http://www.wfpl.org/2011/07/13/lge-report-finds-coal-ash-on-areahomes/

51 Ash on residences study (July 8, 2011): TLH104154-Nuisance-dust-report-7-8-11-FINAL.pdf at 

http://archives.wfpl.org/wp-content/uploads/2011/07/. Note that the analytical techniques used are too 

insensitive for the detection of trace metal amounts.

52 TLH104154-Passive-Sampling-Report_FINAL_July-13.pdf at http://archives.wfpl.org/wpcontent/uploads/2011/07/
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appropriate particle loading for detailed individual particle analysis. The UNC passive aerosol 

sampler was deployed. The UNC passive sampler is unique in its ability to estimate ambient 

concentrations (μg/m3). 

The CC (computer-controlled) SEM individual particle data were processed via the Wagner-Leith 

model to estimate ambient concentrations. Based on this process, the PM10 concentrations 

ranged from 9.4 to 14.7 μg/m3(average over sampling period).53 In summary, the number of fly 

ash/bottom ash on the passive deposition samples and the UNC passive aerosol samples 

appeared to correlate well with the passive deposition samplers in that fly ash/bottom ash was 

a small component of the particulate matter collected on the initial set of samples. However, 

the results from the passive monitoring program did not correlate with the surface dust sample 

results. Given this discrepancy, it was recommended that sampling continue on an ongoing 

basis with the passive deposition samplers and the UNC passive samplers.

Regulatory and Legal Response: On July 20, 2011, the Air Pollution Control District (APCD), 

Louisville, Kentucky, issued a NOV accompanied by a $4,000 fine to LG&E for allowing 

particulates to move outside the plant’s property and settle on adjacent residential properties, 

first in December 2010, then in February and April 2011. The NOV requires LG&E to submit, by 

August 26, 2011, a compliance plan for control of ash emissions from the plant and for 

remediation of particulate fallout on neighboring properties.54

On April 18, 2012, LG&E reached a settlement with the Louisville Metro APCD regarding several 

air emissions and fugitive dust violations in 2011 that resulted in two NOV. The Settlement 

stipulates, among others, that the Company shall submit to the District by April 30, 2012 a 

proposed plan for the application of dust suppressant to inactive open areas of the landfill. 

After notification from the District of its approval of the plan, Company shall comply with the 

plan.55 

Equipment malfunction kept occurring at the Cane Run plant that release clouds of coal ash. A 

malfunction of the sludge processing plant (SPP, July 30-31, 2011) at the LG&E Cane Run power 

plant has sent a billowing cloud of ash into the air. On September 13, 2012, the SPP

malfunctioned again. The SPP mixes the coal ash with other materials to turn it into Poz-O-Tec, 

a cementitious substance, so it can be put into the landfill. A video56 shot by a resident who 

 

53 The UNC passive sampler has recently been used by the US Environmental Protection Agency to monitor coarse 

particles (PM10-2.5) in the Cleveland, Ohio area. Note, however, that in this study PM2.5 was not measured.

54 According to an August 1st, 2011 posting of the Courier: Air Pollution Control District, Louisville, Kentucky: Notice 

of Violation Letter 02246: http://blogs.courier-journal.com/watchdogearth/files/2011/08/LGECaneRunNOV7-

2011.pdf

55 A list of LG&E’s violations and resulting penalties between August 2011 and August 2013 can be accessed at: 

LG&E Fined $65,000 for Odor Problems at Cane Run Power Plant. The News for Louisville, August 5, 2013: 

http://wfpl.org/post/lge-fined-65000-odor-problems-cane-run-power-plant

56 Multiple release are documented in a series of videos: http://www.youtube.com/user/kaeterina1; Cane Run 

Sludge Plant Malfunction September 13, 2012. Youtube, September 16, 2012:
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lives across the street shows clouds of ash rising above the plant - and over the dust screen the 

company installed in April. A Plant representative said the ash was actively being released for 

seven minutes, before the plant was shut down. 57

On September 6, 2013, Hagens Bergman submitted, on behalf of Greg Walker and Kathy Little, 

individually and on behalf of all others similarly situated, intend to file a citizen suit against 

Louisville Gas & Electric Company (LG&E) and its owners (collectively, the Cane Run 

Defendants), pursuant to: (1). 42 U.S.C. § 6972(a)(l)(A), for past and continuing RCRA violations;

(2). 42 U.S.C. § 6972(a)(l)(B), for past and continuing violations of RCRA by having contributed 

and/or contributing to the handling, storage, hauling or disposal of solid and hazardous wastes 

at the Cane Run site in a manner that may present an imminent and substantial endangerment 

to health or the environment; and (3). 42 U.S.C. § 7604(a)(l), for past and continuing violations 

of the federal Clean Air Act (CAA).

The Intent to Sue claims that since at least 2008, the Cane Run Defendants have generated, 

handled, stored, treated, transported, and disposed of solid and hazardous wastes at the Cane 

Run site. These wastes are stored outdoors on the Cane Run site, including in a massive landfill,

an Ash Treatment Basin, and as many as four ash ponds, which are at least partially dry and, 

thus, contain dry solid and hazardous wastes. The Cane Run plant has three active stacks, 

dedicated to three steam generators used in the production of electric power; a Sludge 

Processing Plant (SPP), which is used to process fly ash before storing it in the Landfill; and an 

Ash Silo, which is used to store fly ash for processing by the SPP.

None of these sources of fly ash, bottom ash, toxic metals, and other coal combustion 

particulates located on the Cane Run site (the Landfill, the Ash Treatment Basin, the Ponds, the 

SPP, the Ash Silo, trucks operated by the Cane Run Defendants, roads on the Cane Run site, and 

the Stacks) have adequate controls for insuring that these solid and hazardous wastes are not 

emitted into the atmosphere and deposited on the residential areas surrounding the site. As a 

result, the Cane Run Defendants have regularly and frequently released significant amounts of 

fly ash, bottom ash, toxic metals, and other coal combustion particulates, often in the form of 

dust clouds and storm water runoff, into the atmosphere and over ground. These releases have 

traveled for miles off of the site and, because of the Cane Run site's lack of controls, these 

releases are continuing. The solid and hazardous wastes released from the site have settled on 

the exteriors of surrounding homes and buildings, as well as on playgrounds, parks, lawns, 

pools, ponds, recreational items, and vehicles. These solid and hazardous wastes have also 

 

http://www.youtube.com/watch?v=BPgQCYsErGY; Ash blowing from cane run plant 8 16 12. Youtube, August 18, 

2012: https://www.youtube.com/watch?v=ze0LNF7MNyI&index=4&list=UUwIapnG8JXDG0rCle0_HAFQ

57 Cane Run residents report more blowing ash. Courier-journal, September 14, 2012: http://blogs.courierjournal.com/watchdogearth/2012/09/14/cane-run-residents-report-more-blowing-ash/; http://blogs.courierjournal.com/watchdogearth/2012/10/12/epa-reviews-cane-run-ash-problem/ and http://wfpl.org/post/coal-ashproblems-continue-cane-run.
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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migrated inside surrounding homes and buildings, where they settle in interior living and 

working spaces.

The Cane Run site is adjacent to residential neighborhoods containing thousands of homes. It is 

also in close proximity to parks, schools, roads, restaurants, and shopping areas. Residents of 

the areas surrounding the Cane Run site have complained to county, state, and federal officials 

regarding health problems stemming from exposure to particulates released from the Cane Run 

site, including respiratory ailments, severe eye irritation, sensitivity to strong sulfur odors, and 

elevated cancer rates.

The APCD is the Jefferson County agency charged with enforcing the District's environmental 

regulations, which are promulgated pursuant to Kentucky Revised Statutes, Chapter 77. Many 

of the APCD environmental regulations have been adopted by the USEPA, pursuant to 

Kentucky's State Implementation Plan (SIP) under the CAA. Violations of the APCD regulations 

adopted as part of Kentucky's SIP are therefore violations of the CAA. The APCD has repeatedly 

cited LG&E for violations of the District's environmental regulations relating to the Cane Run 

site's release of fly ash and other particulates into the surrounding community, as well as failing 

to control the strong sulfur odors produced by the Cane Run site's generation and storage of 

coal combustion by-products. 

The Cane Run Defendants' activities have violated and are continuing to violate the Cane Run 

site's Operating Permit, issued pursuant to Title V of the CAA, and regulations which are part of 

Kentucky's SIP under the CAA. Between July 2011 and August 2013, five NOVs were issued for 

violations by Cane Run Defendant LG&E of scores of APCD regulations. Examples include 

“Visible Fugitive Emissions beyond the Property line settling onto surrounding neighborhood 

properties (December 2010, and February and April, 2011);" "On June 21, July 29, and August 4, 

11, 12, and 22, 2011, source emitted clouds of dust into the atmosphere from its sludge 

processing plant that caused nuisance and annoyance to the residents of the neighborhood 

that surround it;" "The source allowed visible fugitive dust emissions to travel from the ash 

landfill, an in-plant road, and the SPP and to cross the plant's property line onto the 

neighboring residential area."

Substantially similar violations to those that are the subject of the APCD NOV's are continuing 

on at least a weekly basis at the Cane Run site because the Cane Run Defendants have failed to 

implement measures to control the emission of fly ash and its constituent toxic metals, bottom 

ash, and other particulates produced by the coal combustion process from the Landfill, the Ash 

Treatment Basin, the Ponds, the SPP, the Ash Silo, roads on the Cane Run site, and the Stacks at 

the Cane Run site, as well from trucks operated by the Cane Run Defendants.

The Cane Run site's Operating Permit does not allow particulate emissions from the Cane Run 

site's Landfill, Ash Treatment Basin, Ponds, roads on the Cane Run site, or from trucks operated 

by the Cane Run Defendants. As a result, particulate emissions from these sources are also 

violations of the CAA and are continuing on at least a weekly basis.
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In November 2013, LG&E agreed to pay $113,250 penalty and comply with a pollution control 

and maintenance plan adopted in April — on top of $33,000 in other ash-related fines since 

2011.

In July 2014, a federal courtruled that a class of residents alleging that Kentucky’ Cane Run 

power plant covered their properties with coal ash may proceed with state tort law claims. The

federal court ruled, on July 17, that the claims aren't preempted by the Clean Air Act (Little v. 

Louisville Gas & Electric Co., 2014 BL 198330, W.D. Ky., No. 13-1214, 7/17/14). Residents

alleged dust and coal ash emitted from the plant coat their homes and properties in violation of 

the CAA and RCRA. They also brought state law claims of nuisance, trespass and negligence. The 

defendants, Louisville Gas & Electric Co. and PPL Corp., moved to dismiss the state law claims as 

preempted by the Clean Air Act. The court found the plaintiffs' arguments persuasive: the court 

dismissed from the lawsuit the plaintiffs' claims under RCRA, and all but one of their claims 

under the CAA, saying that only the state law claims and one CAA claim for alleged operation of 

the Cane Run plant without a valid permit remain.

Recently, LG&E settled a lawsuit for fugitive dust, negligence, and nuisance in Monika 

Burkhead, et al v. Louisville Gas and Electric Company, U.S. District Court, Western District of 

Kentucky at Louisville, which involved over a hundred residents in the community of Riverside 

Gardens. Terms of the settlement are confidential. 

References:

May 18, 2011 and July 14, 2011 emails with attachments from Lisa Evans, EarthJustice, to A. 

Livnat, EPA/OSWER.

Cane Run residents report more blowing ash/September 14, 2012: courier-Journal.com

EPA reviews Cane Run ash problem/October 12, 2012: courier-Journal.com

A letter of Intent to Sue LG&E Cane Run, September 16, 2013, an attachment in a November 4, 

2013 email from Pete Raack, EPA/OECA to A. Livnat, EPA/OSWER.

Louisville faces concerns on coal ash: LG&E has agreed to pay fines for problems at Cane Run 

power plant, Courierjournal.com, Dec. 21, 2013.58

Coal Ash Claims Not Preempted by Air Act, Court Rules in Tort Suit against Power Plant.

59

 

58 http://www.courier-journal.com/article/20131221/GREEN/312210038/Louisville-faces-concerns-coalash?gcheck=1&nclick_check=1

59 Bloomberg BNA Daily Environment Report, July 21, 2014: 

http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=50244297&vname=dennotallissues&jd=a0f3p2v8j1
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EPA Region 5

Duke Energy’s Gibson Generating Station, Somerville & 

Mount Carmel Area, Indiana

Implicated Activity: Disposal (surface impoundment). (Also, a proven damage case on 

account of groundwater impact.)

Description: Residences of the ten trailers in East Mt. Carmel are blanketed regularly with

coal ash dust blowing from the near full ash ponds in the summer; fugitive dust from waste 

disposal causes medical issues and covering cars with coal ash dust. Impact extends also to 

communities across the Wabash River in Illinois.

Status: Active.

Impact Summary: No information.

Study: None.

Regulatory and Legal Response: None.

References:

Knoxville, TN, Public Hearing, October 27, 2010:

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

Louisville, KY, Public Hearing, September 28, 2010:

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

Out of Control: Mounting Damages from Coal Ash Waste Sites, Thirty-one New Damage Cases 

of Contamination from Improperly Disposed Coal Combustion Waste. Environmental Integrity 

Project and EarthJustice. February 24, 2010.

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

 

&split=0; The U.S. District Court for the Western District of Kentucky's opinion in Little v. Louisville Gas & Electric 

Co.: 

http://www.bloomberglaw.com/public/document/Little_v_Louisville_Gas__Electric_Co_CIVIL_ACTION_NO_313CV

01214JH
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EarthJustice, comment to the docket: EPA-HQ-RCRA-2009-0640-6315.

Hoosier Energy Merom Station, Merom, West Old 54, 

Sullivan County, Indiana 

Implicated Activity: Disposal (landfill). (Also, a potential damage case on account of 

groundwater impact.)

Description: Hoosier Energy disposes of its CCRs in landfills on-site. According to Hoosier 

Energy, the volume of waste disposed is approximately 2,050 cubic yards per day. The largest 

volume waste stream is fixated scrubber sludge (a mixture of fly ash, scrubber sludge and lime). 

The area surrounding the Merom generating facility includes residences (the closest: about 800’ 

away from the active landfill cell)60 and farm land. Dust blowing off the landfill has been a 

chronic problem, and has become worse over the last several years as the height of the current 

landfill, which is reaching capacity, has increased. 

A permit for a new third landfill on-site has been recently issued by the Indiana Department of 

Environmental Management. The new landfill will be the larger in both footprint (112 acres) 

and height than the previous two landfills and is much closer to surrounding homes. It has an 

estimated life of 19 years. Although the new permit includes more dust control requirements 

than previous landfill permits, continued dust problems are anticipated because of the nature 

of the material and the disposal method.

Status: Active.

Impact Summary: The nearby residents’ lives have been seriously impacted by the fugitive 

dust. The coal ash dust coats their homes, cars, outdoor furniture, toys, equipment and 

vegetable gardens. They must clean the outsides of their homes and windows frequently. They 

are forced to keep their windows and doors closed at all times. Nevertheless, coal ash dust gets 

into their homes and settles on the furniture and floors. Several nearby residents have infants, 

toddlers and young children or grandchildren and they worry about exposure to the dust both 

indoors and outdoors. They restrict outdoor play and must clean indoor surfaces frequently to 

try to minimize exposure. 

Another neighbor, Mike Eslinger, testified that there are days that he cannot take his children 

outside to play because of the fugitive dust and the blue plume from the smoke stack is so bad. 

His house is covered with dust from the plant.61 There have been problems reported with 

 

60 EPA measurement, Google Maps.

61 In the Louisville Public Hearing, September 28, 2010. A July 26, 2010, consent decree between Hoosier Energy 
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unexplained illessnesses/deaths of livestock in the area and residents are concerned these 

problems may be associated with the coal ash dust, which settles on pastures where the 

livestock feed.

Study: Wipe dust samples from two of the neighbors kids toys showed lead at 1340 μg/wipe 

and arsenic at 2720 μg/wipe; lead on one of the resident’s dressers in a bedroom was 886 

μg/wipe. The same family (Miller) have had their daughter tested for lead and the results 

confirm lead exposure.

Regulatory and Legal Response: Mike Blann, a Hoosier Energy employee and neighbor, 

testified at the same hearing: “Personally over the years I have seen how the State of Indiana 

has regulated the power plant landfill in our backyards and can honestly say it is without doubt 

NOT working!”

The attorney representing the nearby, fugitive dust impacted residents (Rosemary G. Spalding, 

Spalding & Hilmes), reported that since July 2010, they have been engaged in making 

comments on behalf of their client group on a variety of Hoosier Energy-Merom (HE) 

environmental permits. These include a request for IDEM to enforce the permit for the current 

landfill, FP77-03, and public comments on HE’s permit application for a new landfill, FP77-04. As 

a result of their endeavors, the IDEM revoked the variance for daily cover in FP77-03 (state 

operational rules requiring daily cover on the working face of the landfill (329 Indiana 

Administrative Code 10-28-11 and 12) and the variance request was denied in the FP77-04 

application.

References:

Knoxville, TN, Public Hearing, October 27, 2010:

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

Louisville, KY, Public Hearing, September 28, 2010:

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

Coal Combustion Waste Damage Case Assessments, July 2007: 

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

May 24, 2011 email, with attached documents and photos, from Lisa Evans, EarthJustice, to A. 

Livnat, EPA/OSWER.

 

and EPA requires Hoosier Energy to address, among others, a ‘blue plume’ composed of sulfuric acid mist that has 

been emitted from the plant for several years and documented extensively by its neighbors.
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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Spalding & Hilmes, PC, Law Firm. Commenter: Rosemary G. Spalding and Kathryn A. Watson, on 

behalf of Springer family et al., comment to the docket: EPA-HQ-RCRA-2009-0640-10019.

Ameren Coffeen Power Station and US Minerals, Coffeen, 

Illinois 

Implicated Activity: Beneficial use.

Description: Complaints about fly ash from disposal on cars, homes, yards. According to 

IEPA,

62 its air program is not aware of any permitting issues/complaints concerning Coffeen 

Power Plant. Apparently, there is a company called US Minerals in Coffeen that processes boiler 

slag from the Coffeen Power Plant. IEPA had many complaints back in 2004 from citizens in 

Coffeen about blowing coal ash dust. The company installed fabric filters on the process and 

the complaints stopped.

U.S. Minerals, Montgomery County - U.S. Minerals is located on the south side of Coffeen and 

receives boiler slag from the Coffeen Power Plant, grinds and sizes the granules and ships them 

to facilities that make asphalt roofing shingles and blasting media. IEPA received dust 

complaints from Coffeen citizens in 2004, 2005, 2006 and a violation notification letter (VNL) 

was sent in 2006. The company installed bag houses on the process and the facility currently 

has a Bureau of Air (BOA) state operating permit. IEPA has not received recently any complaints 

about operations at this location.

63 U.S. Minerals uses the bottom ash from Coffeen Power 

Station for making construction materials. Coal ash is stored in large piles at the industrial site, 

a half mile north of Coffeen Power Station. The piles of coal ash do not have liners, covers, 

windbreaks, or silt fences to prevent erosion and release of pollutants to air and water.

Status: Active.

Impact Summary: Residents living next to U.S. Minerals have complained to Prairie Rivers 

Network personnel about lung and eye irritation, breathing problems and constant coating of 

their homes and vehicles with coal ash dust. The coal ash piles are still sitting on the ground 

without any air or water pollution controls in place.”

Study: None.

 

62 IEPA’s response, 8/16/2011.

63 IEPA, Other Coal Ash Sites, Case #6, September 2011: http://www.epa.state.il.us/water/ashimpoundment/documents/other-coal-ash-sites.pdf
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Regulatory and Legal Response: OSHA fined U.S. Minerals nearly $400,000 on December 

7, 2010 for more than two dozen safety violations endangering workers with dangerously high 

levels of hazardous ash dust without proper breathing equipment and training.

64

References:

Chicago, IL, Public Hearing, September 16, 2010: 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

Coal Combustion Waste Damage Case Assessments, July 2007.

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

Email correspondence between Julie Gevrenov, EPA R5 and A. Livnat, EPA/OSWER: September 

27, 2011 email to A. Livnat; September 29, 2011 and November 8, 2011 emails to J. Gevrenov. 

Rocky Acres Coal Combustion By-Product Disposal Site – 

Bunge Corp., Oakwood, Vermilion County, Illinois65 

Implicated Activity: Beneficial use (structural fill). (Also, groundwater contamination.)

Description: 380,000 tons of CCR from FBC coal-fired boilers at the Bunge N. America Co., 

which operates a dry corn mill in Dansville, Ill deposited on a 25-ac. site over a 10-year period 

in a ravine adjacent to the Grays Siding neighborhood. The subdivision is a rural community of 

30 homes that all draw their drinking water from groundwater. The CCR fill site has been 

encroaching on residential property, and the residential community is adversely affected by 

uncontrolled fugitive dust from the site.

Status: Inactive.

Impact Summary: Fugitive dust reported as uncontrolled from ‘waste disposal.’ Several 

residents registered “citizen pollutant complaints” with IEPA due to the dust (February 26, 

2002).

Study: None.

 

64 Illinois at Risk, page 9, August 2011: http://prairierivers.org/wp-content/uploads/2011/08/Illinois-at-Risk.pdf; 

Specific information on OSHA’s citations and penalty:

http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=18918

65 Site known also as Gray Sidings.
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Regulatory and Legal Response: IEPA notified O/O that site was illegal open dump in 

2006. Site owner declared bankruptcy; Bunge refuses liability. Bunge installed IEPA-requested 

GW monitoring wells, submitted GW Investigation Work Plan in 2007. Bunge is undertaking 

voluntary GW investigation. The site is now inactive.

Bills were proposed to tighten requirements for structural fill projects, requiring, among others, 

covering fly-ash by a 12” soil cover within 30 days of its placement or end of project.66

References:

Chicago, IL, Public Hearing, September 16, 2010: 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

Out of Control: Mounting Damages from Coal Ash Waste Sites, Thirty-one New Damage Cases 

of Contamination from Improperly Disposed Coal Combustion Waste. Environmental Integrity 

Project and EarthJustice. February 24, 2010.

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

May 22, 2011 email, with attached documents and photos, from Lisa Evans, EarthJustice, to A.

Livnat, EPA/OSWER.

Electric Energy, Inc., Met-South Coal Combustion Waste 

Disposal Facility, Joppa, Illinois 

Implicated Activity: Disposal or beneficial use; haulage.

Description: Coal Ash placed on roads, resulting in being stirred up by each passing vehicle.

Status: Active (?)

Impact Summary: Fugitive dust from waste disposal causes chronic and acute respiratory 

problems. Coal Ash spreading to nearby houses and yards, causing serious health problems.

 

66 On February 15, 2008, SB2567 (2007-08) was proposed , in the 95th General Assembly by Mike Frerichs, DChampaign, and House Bill 4172 was proposed by Bill Black, R-Danville:

http://www.ilga.gov/legislation/fulltext.asp?GAID=9&SessionID=51&GA=95&DocTypeID=SB&DocNum=2567&LegI

D=&SpecSess=&Session=
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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Study: IEPA’s response to EPA R5 (August 16, 2011): IEPA is not aware of any citizen 

complaints of damage cases concerning Electric Energy, Inc., nor is their air program aware of 

any permitting issues. 

From Scott Arnold, IEPA (August 17, 2011): “I checked this same complaint out about three 

years ago. It is a bogus complaint. EEI does NOT stack any ash at all. They haven't in since the 

70's. The ash handling system stores the ash in silos and it is pneumatically moved to retention 

ponds.

The road in question, Liberty Ridge Road was black topped in the mid 80's. Any coal ash that 

was ever applied to that road has been encapsulated for roughly 30 years now. There is no 

potential for air pollution at either site. And BOL decided over three years ago, they weren't 

going to do anything about Liberty Road. There is no "clean up" on going. I was down in Joppa 

yesterday and confirmed all of the above.”

Regulatory and Legal Response: None.

References:

Louisville, KY, Public Hearing, September 28, 2010:

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

Chicago, IL, Public Hearing, September 16, 2010: 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

EPA Region 6

Clean Hydro Reclamation (formerly:Making Money Having 

Fun, LLC) Landfill, Bokoshe, Le Flore County, Oklahoma

Implicated Activity: Reclamation of an open coal pit mine/landfilling; haulage. (Also, surface 

water contamination.)

Description: Making Money, Having Fun (renamed: Clean Hydro Reclamation), a coal ash 

company, has been dumping coal ash in Bokoshe from the coal-fired AES Shady Point power 

plant in nearby Panama, Oklahoma (7 miles east). Oklahoma law prohibits locating a coal ash 

dump any closer than 3 miles from an incorporated city: when Making Money Having Fun
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(MMHF) applied to the Oklahoma Corporation Commission for a permit to dispose ‘commercial 

waste’, they left the 100-year old, incorporated town of Bokoshe off their maps. MMHF is

building a coal ash wall at least 50’ high and growing, dumping the ash first and only adding

oil/gas wastewater later to reclaim the abandoned strip mine.67 MMHF, in denial that there is a 

town (incorporated since 1899) of less than 20,000 within a 1.2 mile from the fill area, have 

been operating since 2001 without any intervention by a regulatory authority.

“Significant amounts of fugitive ash were seen every time a load of ash was dumped into the 

recirculating water stream. The fugitive ash lingered in the air and did not disperse quickly. 

Oklahoma’s requirements (Title 45 § 11.913.14) are that dust control measures shall be taken 

where dust significantly reduces visibility of equipment operators. Haulage roads shall be wet 

down as necessary unless dust is controlled adequately by other methods. Dust control 

measures are also specifically mentioned in the permit. ODEQ has jurisdiction over fugitive dust 

and issues Air Quality Permits in that regard.”68

Status: Active.

Impact Summary: The coal ash flies out of 80, 25-ton trucks/day as fugitive dust on their

daily trips to Bokoshe. A video shows dust billowing hundreds of feet up in the air. Sometimes 

school busses drive through it. The coal ash then leaks mercury, arsenic and other metals into

the groundwater that supplies drinking water and then runs down the 50 foot hill onto the 

neighbors’ property. Over half of the school kids have asthma. The calves are stillborn. 

Fourteen of the 20 families living at the vicinity of the disposal site have/had at least one cancer 

case per family, including a toddler with leukemia, an 8th grade boy with breast cancer, and a 

35-year-old teacher who has had cancer twice. Several of her same-age exercise buddies are 

dead from cancer.

69

Study: None.

Regulatory and Legal Response: Following an April 15, 2009 meeting of concerned 

residents with the Air Quality Advisory Council/OKDEQ, they found that MMHF has been 

 

67 Two Clean Water Act Administrative orders were issued by EPA R6: (i) on Dec. 10, 2009 (Docket CWA#06-2010-

1748), for discharging pollutants (900 to 4200 ppm TDS) to a tributary of the Buck creek; and (ii) on Feb. 22, 2010, 

another cease-and-Desist order. Due to lack of compliance (including requirements to eliminate the discharge of 

the pollutant water, and within 30 days, document and describe the corrective actions taken to eliminate the 

unauthorized discharge and provide a plan explaining how future waste stream will be managed). Late in 2010, the 

case was forwarded to DOJ. Because of surface water contamination problems, the Oklahoma Corporation 

Commission prohibited MMHF in 2010 from accepting water from oil and gas wells that was mixed with the fly ash.

68 The earliest reference to a fugitive dust issue, in MMHF’s Reclamation Pit #2. Cited from U.S. EPA Site Visit 

Report Coal Combustion Waste Minefill Management Practices - Oklahoma - Draft Final Report, September 9, 

2002: http://www.epa.gov/waste/nonhaz/industrial/special/fossil/sites/ok-visit.pdf

69 ABC News: Oklahoma Town Fears Cancer, Asthma May Be Linked to Dump Site(March 29, 2011): 

http://abcnews.go.com/US/oklahoma-town-fears-cancer-asthma-linked-dump-site/story?id=13240312
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committing 5 separate violations of the CAA for seven years. However, in the subsequent 

Consent Order between OKDEQ and MMHF, there were no fines, penalties, or findings of 

violation.

On October 6, 2011, residents of Bokoshe70 filed, in LeFlore County District Court, a lawsuit 

against AES Shady Point PP, MMHF LLC and its fly-ash operators individually, Thumbs Up Ranch, 

GCI Mining, Mountain Minerals and several trucking companies (overall, 24 defendants), “for 

their creation of a noxious and harmful nuisance, pollution and contamination, trespass, 

diminution of property values and business interest, and personal injury.” According to the 

plaintiffs, people living in more than half of the homes near the fly-ash pit have had cancer, and 

they believe that the high number of respiratory illnesses – including asthma in children –

among area residents is caused by dust blowing from the fly-ash pit. The lawsuit asks the court 

to force the defendants to stop the dumping, clean up the site, and pay for current and future 

fly-ash-related illnesses and property damage. The plaintiffs are asking more than $75,000 each 

in compensatory and punitive damages.71

In October 2012, the six Bokoshe plaintiffs in a class-action lawsuit that was filed in October

2011 against AES Corp. and the businesses serving its nearby AES Shady Point plant filed an 

amended petition,

72 adding 48 defendants that use the same disposal pit site. Summons were 

issued to the new defendants on October 10, 2012. A jury trial had been set for November 29, 

2012.

References:

Dallas, TX, Public Hearing, September 8, 2010: 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

 

70 Bokoshe residents William and Diane Reese, Herman Tolbert, Tim Tanksley, Susan Holmes and Charles Tackett: 

http://swtimes.com/sections/news/dozens-defendants-added-class-action-coal-dust-lawsuit.html

71 http://www.tulsaworld.com/news/article.aspx?articleid=20111102_12_A11_CUTLIN672607&subjectid=11

72 Dozens Of Defendants Added To Class-Action Coal Dust Lawsuit: Times Record, Oct. 19, 2012: 

http://swtimes.com/sections/news/dozens-defendants-added-class-action-coal-dust-lawsuit.html. Among others, the 

amended petition adds oil and gas producers who also use the MMHF, aka Making Money Having Fun, Clean Hydro 

Reclamation and Clean Hydro Evacuation disposal pit site to dispose of their produced fluids, including saltwater 

and other contaminants, from oil and gas well drill sites and production sites. The amended petition alleges the 

transport of the produced fluids to the disposal pit has resulted in the release of hundreds of millions of gallons of 

contaminants into creeks, streams, rivers and other surface water drainages and impoundments, and specifically 

onto and under the homes, businesses and properties of the plaintiffs and their fellow class members. The lawsuit 

contends that more than 450 residents in and around Bokoshe have been affected by the businesses’ actions. 
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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Denver, CO, Public Hearing, September 2, 2010: 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

Comment to the docket submitted by Jody Harlan, Chapter Vice Chair, Sierra Club Oklahoma: 

EPA-HQ-RCRA-2009-0640-2401

May 4, 2011 meeting between Susan Holmes, B.E.Cause and Lisa Evans, EarthJustice, with 

EPA/OSWER.

Tulsa World, 11/2/2011

Coal Ash chronicles, 2014: http://www.coalashchronicles.com/in-your-backyard/oklahoma

Arizona Public Service San Juan Generating Station and 

Four Corners Power Plant, New Mexico 

Implicated Activity: Disposal (surface impoundments) and beneficial use (minefilling) (Also, 

groundwater and surface water contamination caused by minefilling.)

Description: In addition to the contamination of groundwater and surface water from the 

surface impoundments, APS does not control fugitive dust resulting from its disposal activities. 

The arid climate and often windy conditions on the Navajo Reservation make airborne ash from 

the uncovered and not reclaimed impoundments a serious problem. APS’s decades-long failure 

to contain windblown ash has resulted in contamination of soil in areas surrounding the 

impoundments.

APS claims that active measures (dust suppressants, wetting, and compaction) are undertaken 

to control fugitive dust, and that Four Corners has been approached by the Navajo Nation to 

ask for application of CCPs on soils of the NAPI (irrigated agriculture) Project.

73

Status: Active.

Impact Summary: Apparently associated with higher-than-normal rates of cancer (leukemia) 

and respiratory ailments attacking otherwise healthy, young Navajo residents in the Shiprock 

downwind area

 

73 USWAG’s comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0446.
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Study: None.

Regulatory and Legal Response: New Mexico does not require daily cover at disposal 

sites.

References:

Denver, CO, Public Hearing, September 2, 2010:

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

Out of Control: Mounting Damages from Coal Ash Waste Sites, Thirty-one New Damage Cases 

of Contamination from Improperly Disposed Coal Combustion Waste. Environmental Integrity 

Project and EarthJustice. February 24, 2010.

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

Comment to the docket submitted by Marty Rustan on behalf of Lisa Evans, EarthJustice: EPAHQ-RCRA-2006-0796-0446.

An October 24, 2006 complaint by a Navajo Reservation resident to Susan Bodine, the AA for 

OSWER, in a meeting at EPA HQs in Washington, DC.

EPA Region 8

Valmont Coal Plant, Boulder, Colorado

Implicated Activity: Haulage for disposal (conveyer belt).

Description: Fugitive dust blowing off plant (conveyer belt) as a result of high winds.

Status: Active.

Impact Summary: No information.

Study: None.

Regulatory and Legal Response: None.
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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References:

Denver, CO, Public Hearing, September 2, 2010: 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-hearing.htm

EPA Region 9

Nevada Energy, Reid Gardner Generating Station, Moapa, 

Nevada

Implicated Activity: Disposal, Class III industrial landfill, surface impoundments and ash 

haulage. (Also, a proven damage case on account of groundwater and surface water 

contamination.)

Description: The waste disposal site, directly adjacent to the power plant, is a 91-acre unlined 

landfill, less than one mile from the Moapa Band of Paiutes Tribal community on the Moapa 

River Indian Reservation in Southern Nevada. There are two major types of CCR management 

that seem to generate most of the fugitive dust that blows to the community of the Moapa 

Band of Paiutes: (i) Fly ash from the surface impoundments that is scooped out periodically and 

heaped for haulage to the coal ash landfill. There are also pond- solids, forming on the sides of 

the impoundments as liquid evaporates, entrained in droplets as liquid evaporates, or made airborne by blowing wind, all being carried from the wastewater ponds; (ii) Some twenty 

uncovered trucks of coal ash per day are trucked from the ash ponds to the landfill over 

unpaved haul roads. The landfill is also higher in elevation and southeasterly of the tribal 

community. CCR dust is generated when the landfill surface is dry, disturbed by landfill 

activities, driven upon by haul trucks, or when ash escapes or is blown from the haul trucks. 

Winds in the vicinity of the power plant are frequently southern or southeasterly, so that ash 

mobilized by the winds frequently blows in the Moapa community. During high wind events, 

residents of the Reservation have observed dust from the vicinity of the landfill sweeping 

towards them.74

Status: Active.

Impact Summary: None available.

 

74 Between 2008 and 2012, this occurred on September 19, 2008; April 14, 2009; April 23, 2009; April 20, 2010; 

December 13, 2010; June 30, 2010; April 7, 2011; and February 13, 2012
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Study: Early in 2012, EPA R9 launched a fugitive dust study: “Region 9 is in the process of 

evaluating the dust/odor issues associated with the Reid Gardner (RG) facility. We are in the 

process of information gathering: Environmental permits and EIS documents and associated 

public comments; Meteorological data; Historic and current RG dust and odor complaint data; 

Effective engineering and process controls to minimize dust/odors from the management of 

CCRs; Damage case related information related to the management of CCR waste; RG analytical 

data for both slurried and landfilled CCR wastes; and on and off-site soil data, if available; to 

determine if the area has been adversely impacted from CCR related heavy metals.”75 Based on 

a recent feedback from EPA R9, it seems 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.76

Regulatory and Legal Response: Tribal community has complained for years about 

blowing dust from landfill area, aggravating respiratory ailments, and smells emanating from 

wastewater ponds. When NV Energy applied for the landfill expansion in 2006,77 more than fifty 

comments from tribal members were generated against the expansion, which were all 

dismissed by BLM. More recently complaints have been documented in photos (April 2010, July 

2010, April 2011, and May 2011). Complaints have been registered with the Nevada 

Department of Environmental Protection (NDEP), NV Energy, Southern Nevada Health District, 

and the Clark County Department of Air Quality. To this date (mid-2011), no written record or 

report on complaints has been provided to the Tribal community or Sierra Club.

Tribal members have commented on cultural life-ways being abrogated by the landfill’s 

operation, such as the harvesting and hunting of local plants and small game, as well as the 

ability to conduct ceremonies and traditional religious observances outdoors. There is also no 

record of response to these complaints. During a dust storm 4-5 years ago, Tribal Member 

Calvin Meyers was told he “did not have the authority” to call in a complaint.

According to a June 24, 2010 Notice of Decision on a public comment period on the pending 

NDEP’s issuance of groundwater permit number NEV91022, Nevada Energy, Inc., Reid Gardner 

Station (RGS), one of the letters submitted by the Paiutes addressed air emissions. The letter 

recommended conducting a health feasibility study to look at health consequences of living 

near RGS, to be paid for by NV Energy; and a tribal lifestyle study to identify exposure and risk. 

A public hearing was conducted on June 3, 2010, where “much of the comments dealt with 

issues outside the scope of the permit or regulations and authority of the Bureau of Water 

Pollution Control.” The groundwater permit was granted and became effective June 25, 2010.

 

75 A January 31, 2012 email from J. Schofield, EPA R9, to A. Livnat, EPA/OSWER.

76 November 12, 2013 email from J. Schofield, EPA R9, to A. Livnat, EPA/OSWER.

77 NV Energy received a tentative approval for a single-lined, 24-acre expansion of their coal ash landfill on BLM 

land.
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The Solid Waste Authority for Southern Nevada is the Southern Nevada Health District. 347 

letters were submitted to the Southern Nevada Health District opposing the landfill. Of these 

letters, seven include complaints of blowing dust, asthma, and falsified reports. To this date 

(mid-2011), there is no record of compliance violations or enforcement actions on the dry coal 

ash landfill at Reid Gardner.

On December 16, 2010, The Moapa Band of Paiutes et al sued U.S. BLM for violating NEPA 

when allowing the LF expansion on public land.

78 On October 6, 2011, in the case of the Moapa 

Band of Paiutes et al v. U.S. BLM et al and Nevada Power Co., the US District Court of Nevada 

denied the plaintiffs’ request for Summary Judgment concerning BLM’s failure to prepare an 

EIS, following FONSI in its Environmental Assessment regarding Nevada Energy’s request for 

relocating its CCR evaporation ponds and expanding the landfill. Among others, the court 

stated (P. 11): “The BLM properly determined that the standards for fugitive dust and hydrogen 

sulfide fell within the range of National and State Ambient Quality Standards” (AR at 100-101), 

and that “BLM complied with its obligations under NEPA in determining that the Expansion 

would have no significant impact on air quality.”

The September 9, 2011, South Nevada District Board of Health issued CCR landfill operation 

permit contains two sections on controlling fugitive dust (8g and 8h), and indicates that the 

installation of PM10 continuous monitoring was completed prior to March 1, 2011. While a 

significant step forward, the permit does not include any reporting requirement to the 

permitting authority, which obviates the enforcement aspect of this measure. 

The April 8, 2011 Nevada Energy draft dust suppression plan for high-wind (>15 miles/hour) 

event days, developed by Nevada Energy as part of the permit requirements, does not spell out 

what additional measures, other than ceasing the disturbance of the coal and coal ash piles 

during high wind event days, would be undertaken to control excessive fugitive dust emissions

On October 10, 2011, the Moapa Band of Paiutes and the Sierra Club submitted a law suit 

against the S. Nevada Health Board, who had granted Nevada Energy a permit to expand the 

CCR LF. “When the wind blows from the south, the ash blows into the homes and the hair and 

food of my clients...State law is clear: The Board of Health is not entitled to license a public 

nuisance.”

79

On February 8, 2013, a 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, was submitted by the Law 

 

78 High Country News, Case No. 2:10-CV-02021-KJD-LRL: http://www.hcn.org/greenjustice/blog/sierra-club-and-asmall-tribe-sue-the-blm-to-stop-the-expansion-of-a-coal-ash-landfill

79 Lawsuit aims to block expansion of NV Energy landfill; Las Vegas Review-Journal, October 10, 2011: 

http://www.lvrj.com/news/lawsuit-aims-to-block-expansion-of-nv-energy-landfill-131491113.html
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Offices of Charles M. Tebbutt, P.C., Eugene, Oregon, to NV Energy and the California 

Department of Water Resources.80

These and similar complaints were included in Appendix A of the August 8, 2013 Sierra Club and 

the Moapa Band of Paiute Indians citizen suit in federal court against Nevada Energy and the 

California Department of Water Resources, seeking cleanup of contaminated lands and waters 

surrounding the Reid Gardner plant.81 Considering fugitive dust from Reid Gardner’s facility, 

<Plaintiffs’ members in the community center of the Tribal reservation live within a mile or two 

of the Reid Gardner facility, including its landfill, wastewater ponds, the generating station 

itself, its adjacent coal piles, and the facility’s other sources of pollutants and contaminants. 

Plaintiffs’ members are reasonably concerned about harm to their health from breathing air 

contaminated with particulates from the coal ash landfill, solids from the wastewater 

evaporation ponds, coal dust, and other contaminants blown into the reservation from the Reid 

Gardner facility. Plaintiffs’ members are also concerned about the threat to their health caused 

by needing to shutter themselves indoors, including during hot weather, so as to avoid 

exposure to southerly winds that entrain contaminants from the facility.>

<Plaintiffs’ members utilize the land and river in the area near the Reid Gardner facility for 

religious purposes and spiritual practice. CCW dust and associated fumes and gases from the 

Reid Gardner facility, including from the coal ash landfill and CCW ponds, impair Plaintiffs’ 

ability to pursue these practices and undermines the quality of the experience. Plaintiffs also 

attempt to grow vegetables in their home gardens, and plaintiffs are reasonably concerned that 

toxic dust from the Reid Gardner facility deposited on their soil and vegetables renders their 

produce unsafe or otherwise impairs its quality.>

<Plaintiffs’ members, volunteers and staff have seen and smelled the coal ash landfill and 

wastewater ponds, including the dust clouds they generate during periods of high wind and the 

odors that may be especially intense during hot periods.>

References:

 

80 EPA Correspondence Management Control Number AX-13-000-2093; File Code 401_127_a General 

Correspondence Files Record copy (An April 29, 2013 email attachment from P. Raack, EPA/OECA to A. Livnat, 

EPA/OSWER).

81 BNA 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. The suit said 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
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

51

May 12, 2011 email, with attachments of petitions and photos, from Lisa Evans, EarthJustice, to 

A. Livnat, EPA/OSWER.

Email exchanges between J. Schofield, EPA R9, with A. Livnat, EPA/OSWER (August 25, 2011; 

November 2, 2011; and November 13, 2013.)

October 10 press article on Paiute/Sierra Club suit to block Landfill expansion, 10/10/2011

April 29, 2013 email, with attachment, from P. Raack, EPA/OECA to A. Livnat, EPA/OSWER.

EPA Region 10

College Peat and Landscaping and Alaska Industrial 

Support, Inc., Fairbanks, Alaska

Implicated Activity: Storage and haulage for disposal and beneficial use.

Description: In Fairbanks, Alaska, two coal‐fired power plants have no designated CCR landfill 

in the area. Power plants operated by Aurora Energy, LLC and the University of Alaska 

Fairbanks (UAF) use a contractor to dispose of their coal ash. The UAF produces 1 to 2 dump 

truck loads of coal ash daily. Until just a few years ago, this waste was used exclusively on 

campus as filler material for numerous construction projects such as roads, buildings, parking 

lots, and sports fields, and even for winter traction on icy roads and sidewalks. Today, coal ash 

is stockpiled at a local landscaping company until it is used as fill in local areas such as public 

spaces, roads, and residential neighborhoods. The landscaping company was recently notified 

of a violation of air pollution regulations in reference to coal ash disposal. 

Status: Active.

Impact Summary: In June 2010, Local Fairbanks resident and Farmer’s Market vendor Mary 

Zalar commented: ‘Last spring, while selling our handcrafted wood bowls at our local Farmer's 

Market, a strong north wind blew coal ash into the market from where it is stored on adjacent 

property (College Peat & Landscaping stockpile next to the Farmer’s Market). Our product was 

coated with a very obnoxious, persistent and pervasive black ash that was difficult to remove. 

My concern increased when I discovered there is no regular testing or regulation of the disposal 

of coal ash in our community.’
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Study: At the request of local residents, a sampling project was conducted in June 2010 in the 

Fairbanks area to determine the toxicity in local sources of coal ash. Samples of coal ash from 

local power plants, waste disposal sites and reuse sites were found to contain a range of toxic 

heavy metals. In almost every case, the levels of toxic chemicals were found to be much higher 

than background soil samples from Fairbanks. In the coal ash samples, levels of arsenic and 

vanadium were found at concentrations that may harm human health. Two samples from the

UAF coal fired power plant show arsenic concentrations more than 100 times higher than the 

standard for residential soils set by the EPA. Lastly, mercury was found at levels 70 times higher 

than background soils, and at levels high enough to be a concern if inhaled in the form of 

windblown dust.

Regulatory and Legal Response: In June 2010, the Alaska Department of Environmental 

Conservation (ADEC) sent a compliance letter to College Peat & Landscaping, citing concerns 

about fugitive dust emissions from its property onto the neighboring Farmer’s Market. ADEC’s 

inspection showed “excessive dust coming from a coal ash pile that was uncovered and was 

spreading dust & ash all over the tables at the Farmer’s Market” in violation of 18 AAC 

50.045(d) and 18 AAC 50.110: Air Pollution Prohibited, creating a health concern for the vendors 

and customers. The cited entity was requested to take appropriate precautionary steps to 

prevent fugitive dust from coal ash storage piles and coal ash handling activities. 

In August and September 2010, ADEC issued a letter alleging Possible Violation of Solid Waste 

Transport Regulation and a Confirmed Violation of Solid Waste Transport Regulation, 

respectively, alleging citizen complaints, then actual observation of Alaska Industrial Support, 

Inc. (AIS) trucks hauling uncovered loads of coal ash from the UAF power plant to the College 

Peat site, in violation of 18 AAC 60.015. The second letter forewarned that was another truck to 

be seen uncovered, ADEC would begin a formal enforcement action against AIS. 

On May 16, 2011, a citizen (Teresa de Lima) submitted a CERCLA petition to EPA R10 to conduct 

a preliminary assessment of the suspected release of CCW at the owners parents’ residential 

property and neighboring properties in Fairbank, AK, due to 8-10 daily trips of CCR hauling 

trucks from Aurora Energy’s PP to a landfill, with inadequately covered load. The wetted load 

releases CCR-laden sooty water, leaving a CCRs trail in the streets and sidewalks. All her prior 

efforts to contact local and state authorities remained inadequately- or not addressed.82

Teresa de Lima (Affected Citizens in Fairbanks, Alaska HR2273) cites EPA’s response to her May 

2011 filing of a citizen’s petition to EPA R10, accompanied by four photos documenting the 

fallout on her ailing parents’ house:

83 In September 2011, EPA conducted soil testing on homes

 

82 Petition referenced in Aurora Energy Coal Power Plant preliminary Assessment, Fairbanks, AK, TD: 11-06-0004, 

prepared by Ecology and Environment, Inc., for USEPA, Seattle, Washington, January 2012: 

http://groundtruthtrekking.org/static/uploads/files/EPA-PA-Fairbanks-Coal.pdfGOqKVt/EPA-PA-Fairbanks-Coal.pdf

83 Her mother has very severe Rheumatoid Arthritis, Alzheimer, Cardiac and Gastroesophageal reflux disease 

(GERD). Her father, Parkinson; she cites scientists and doctors of the Physicians for Social Responsibility that these 

ailments can be directly linked to exposure. She also cites exposure of the residents on Van Horn Road, College 
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

53

in the immediate area of the dirty polluter on First Avenue (the Aurora Energy power plant, 

which is owned by the Usibelli Coal Mine).84 In an enclosed email April 18, 2012 message, she 

prods Erik Elram, the environmental liaison of Alaska’s representative Don Young, to oppose 

the passage of HR2273 because of the adverse side effects of using CCW as road fill.

References:

Two emails (May 10, 2011 and May 11, 2011), with attached documents and photos, from Lisa 

Evans, Earthjustice, to A. Livnat, EPA/OSWER.

April 18, 2012 letters from Teresa de Lima, Affected Citizens in Fairbanks, Alaska to Lisa P. 

Jackson, EPA’s Administrator, and to Erik Elam, the environmental liaison of Representative Don 

Young, U.S. Congress.

 

Estates to fugitive dust, including’ significant health problems that have striken four individuals after having lived in 

close proximity to the coal (combustion) piles – i.e., respiratory ailments and Saircoidosis (a disease in which 

inflammation occurs in the lymph nodes, lungs, liver, eyes, skin, or other tissues).

84 Remembering Don and Rose de Lima; Northern Line, Summer 2013, page 11: http://northern.org/medialibrary/document-archive/northern-line/2013/summer-2013-high-resolution-file-6-mb/at_download/file
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

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Fugitive Dust Cases: Summary Table85 Case State, Region LFSI Minefill Structural Fill Road Application Haulage Captive Waste Plant Operation

ActiveResolvedInactivePartially ActiveDust OnlyMediaDust & Other StudyAir Dispersion Particle StudyHealth StudyState/Gov ActionPublic HearingDamage Case86Comment to 

Dockt

Court case, Intent to Sue, Settlement

AES 

Guayama,

PR 

PR

R2

    

Vitale Fly 

Ash Pit, 

Beverly

MA

R2

   

Gambrills MD

R3

    

Mirant

Brandywin

e LF

MD

R3

   

Indian 

River, 

Millsboro

DE

R3

        

CaseState, RegionLFSIMinefillStructural Fill

Road Application

HaulageCaptive WastePlant OperationActiveResolvedInactivePartially ActiveDust OnlyMeDust & Other 

dia

StudyAir Dispersion Particle StudyHealth StudyState/Gov ActionPublic HearingDamage Case87Comment to 

Dockt

Court case, Intent to Sue, Settlement

Bruce 

Mansfield 

PA

R3

       

 

85 Entry marked only when parameter is relevant specifically to fugitive dust.

86 Recognized or alleged damage case based on groundwater and/or surface water impact. 

87 Recognized or alleged damage case based on groundwater and/or surface water impact. 
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

55

Shippingp

ort

Mitchell 

PP, 

Courtney

La Belle, 

Luzerne 

Township

PA

R3

PA

R3



  





 ?



 

 

Rostosky 

Ridge Rd.

PA

R3

     

East End 

LF, Henrico 

Co.

VA

R3

 

88

Battlefield

Golf 

Course

VA

R3

      

CaseState, RegionLFSIMinefillStructural Fill

Road Application

HaulageCaptive WastePlant OperationActiveResolvedInactivePartially ActiveDust OnlyMediaDust & Other StudyAir Dispersion Particle StudyHealth StudyState/Gov ActionPublic HearingDamage Case89Comment to DocketCourt case, Intent to Sue, Settlemeent

Fort 

Martin PP, 

F. Martin

WV

R3

?   ? 

Arrowhea

d LF, 

Uniontow

n

AL

R4

     

 

88 State endorsed site activities, but County issued a NOV for permit violation.

89 Recognized or alleged damage case based on groundwater and/or surface water impact. 
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

56

Riverbend 

Steam P., 

Mt. Holly

NC

R4

      

PE 

Asheville

NC

R4

      

Swift 

Creek 

Rocky 

Mount

NC

R4

   

Harlan 

Co., Off US 

119

KY

R4

? ?   

CaseState, RegionLFSIMinefillStructural Fill

Road Application

HaulageCaptive WastePlant OperationActiveResolvedInactivePartially ActiveDust OnlyMediaDust & Other StudyAir Dispersion Particle StudyHealth StudyState/Gov ActionPublic HearingDamage Case90Comment to 

Dockt

Court case, Intent to Sue, Settlement

Louisville 

G&E Cane 

Run 

KY

R4

        

91

Duke 

Energy’s 

Gibson, 

Somerville

/Mt. 

Carmel 

IN

R5

?     

Hoosier 

Energy 

Merom

IN

R5

        

92



93

 

90 Recognized or alleged damage case based on groundwater and/or surface water impact. 

91 (i) Settlement between LG &E and over 100 residents of the community of Riverside Gardens for fugitive dust, negligence and nuisance; (ii) Intent to Sue 

(9/6/2013).

92 Proposed Rule Docket: EPA-HQ-RCRA-2009-0640-10019.

93 NOV (8/2009); CO (7/2010) between Hoosier Energy and IEPA, $95K penalty and upgrade of pollution control technology.
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

57

Ameren 

Coffeen/

US 

Minerals

IL 

R5

   

94

 

CaseState, RegionLFSIMinefillStructural Fill

Road Application

HaulageCaptive WastePlant OperationActiveResolvedInactivePartially ActiveDust OnlyMediaDust & Other StudyAir Dispersion Particle StudyHealth StudyState/Gov ActionPublic HearingDamage Case95Comment to

Dockt

Court case, Intent to Sue, Settlement

Rocky 

Acres 

CCBP 

Disposal 

site, 

Bunge 

Corp., 

Oakwood

IL 

R5

      

Met-South 

CCW 

Disposal 

Facility, 

Joppa

IL 

R5

? ?    

MMHF LF, 

Bokoshe

OK

R6

 96        

97

San Juan 

G. Station/ 

4 Corners

NM

R6

    

 

94 OSHA fined US Minerals $400 K in Dec. 2012 for endangering their workers on multiple occasions with hazardous ash dust.

95 Recognized or alleged damage case based on groundwater and/or surface water impact

97 A class action Lawsuit against AES Shady point and additional 23 defendants, Oct. 2011, amended Oct. 2012.
Damage Cases: Documented Fugitive Dust Impact Final CCR Management Rule December 2014

58

CaseState, RegionLFSIMinefillStructural Fill

Road Application

HaulageCaptive WastePlant OperationActiveResolvedInactivePartially ActiveDust OnlyMediaDust & Other StudyAir Dispersion Particle StudyHealth StudyState/Gov ActionPublic HearingDamage Case98Comment to 

Dockt

Court case, Intent to Sue, Settlement

Valmont 

Coal Plant, 

Boulder

CO

R8

   

Nevada 

Energy 

Reid 

Gardner, 

Moapa

NV

R9

    

99



100

 

101

College 

Peat & 

Landscapi

ng, AIS, 

Fairbanks

AK

R10

      

102

 

98 Recognized or alleged damage case based on groundwater and/or surface water impact. 

99 In 2012, EPA R9 launched a study to evaluate the dust/odor issues associated with the power plant.

100 EPA R9 conducted a fact-finding visit to Reid Gardner and the Paiute Indians (Sep. 26, 2012), based on which findings’ it has not pursued any enforcement 

action.

101 (i) Against the Bureau of Land Management (Dec. 2010) for failing to prepare an EIS as a condition for authorizing a CCR LF expansion on public land; 

plaintiff’s request denied (Oct. 2011); (ii) Lawsuit, Moapa Band of Paiutes and the Sierra Club against the S. Nevada Health Board (permitting agency), Oct. 

2011; (iii) Intent to Sue, Moapa Band of Paiutes and the Sierra Club against Nevada Energy and the California Department of Water Resources (Feb., 2013).

102 A City resident submitted (5/2011) a CERCLA petition to EPA R10 for assessment of fugitive dust releases on her parents’ property next to the trucks’ CCR 

hauling route. EPA R10 responded it would conduct soil testing at the impacted property.