Alexander Livnat, Ph.D.

12/18/2014

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

cases. This volume comprises 22 damage case-specific modules. Each module contains background 

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

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

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

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

footnotes and a list of references provide links to sources of information.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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IIb. Coal Combustion Residuals

Potential Damage Cases

PART II (Cases PTb33 to PTb55)

(Submitted and Assessed between 2010 – January 2011)
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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PTb33. Belews Creek Steam Station, Duke Energy, Belews Creek (Walnut Cove), Stokes County, NC ..3

PTb34. Cape Fear Steam Plant, Progress Energy, Moncure, Chatham County, NC Carolina ....................9

PTb35. Dan River Steam Station, Duke Energy, Eden, Rockingham County, NC...................................15

PTb36. H.F. Lee Steam Plant, Progress Energy, Goldsboro, Wayne County, NC....................................20

PTb37. L. V. Sutton Steam Plant, Progress Energy Carolina, Wilmington, New Hanover County, NC ..25

PTb38. Leland Olds Station, Basin Electric Power Cooperative, Stanton, Mercer County, ND...............34

PTb39. Cardinal Fly Ash Reservoir (FAR) 1 and 2, American Electric Power, Brilliant, Wells Township, 

Jefferson County, OH .................................................................................................................................39

PTb40. General James M. Gavin Power Plant, American Electric Power (AEP) - Ohio Power Company, 

Cheshire, Gallia County, OH......................................................................................................................45

PTb41. Muskingum River Plant, American Electric Power (AEP) - Ohio Power Company, Beverly, 

Washington County, OH.............................................................................................................................51

PTb42. Northeastern Station Ash Landfill, American Electric Power - Public Service Company of 

Oklahoma, Oologah, Rogers County, OK ..................................................................................................55

PTb43. Frank R. Phillips Power Plant, Duquesne Light Company, Crescent Township, Allegheny County 

and Hopewell Township, Beaver County, PA ............................................................................................59

PTb44. Hunlock Power Station, UGI Development Company, Hunlock Creek, Luzerne County, PA ....62

PTb45. Mitchell Power Station, Allegheny Energy, Courtney, Washington County, PA.........................67

PTb46. Portland Generating Station's Bangor Quarry Ash Disposal Site, RRI Energy, Inc., Bangor, 

Upper Mount Bethel Township, Bangor Borough, Northampton County, PA...........................................72

PTb47. Seward Generating Station, RRI Energy, Inc. (Formerly Reliant Energy, Inc.), New Florence, 

Indiana County, PA.....................................................................................................................................76

PTb48. Dolphus M. Grainger Generating Station, South Carolina Public Service Authority (SCPSA), 

Conway, Horry County, SC........................................................................................................................81

PTb49. Wateree Station, South Carolina Electric and Gas (SCE&G), Eastover, Richland County, SC...87

PTb50. Cumberland Steam Plant, Tennessee Valley Authority (TVA), Cumberland City, Stewart County, 

Tennessee....................................................................................................................................................93

PTb51. Gallatin Fossil Plant, Tennessee Valley Authority (TVA), Gallatin, Sumner County, TN ..........97

PTb52. John Sevier Fossil Plant, Tennessee Valley Authority (TVA), Rogersville, Hawkins County, TN

..................................................................................................................................................................104

PTb53. Johnsonville Fossil Plant, Tennessee Valley Authority (TVA), New Johnsonville, Humphreys 

County, TN ...............................................................................................................................................111

PTb54. Fayette Power Project (Sam Seymour), Lower Colorado River Authority (LCRA), La Grange, 

Fayette County, TX...................................................................................................................................120

PTb55. Oak Creek Power Plant, Wisconsin Energy (WE) – Wisconsin Electric Power Company 

(WEPCO), Oak Creek, Milwaukee and Racine Counties, WI..................................................................125
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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PTb33. Belews Creek Steam Station, Duke Energy,1 Belews Creek (Walnut Cove), Stokes 

County, NC

Type: Surface Impoundment and Landfills.

Background and Description: The Belews Creek Steam Station, with two-unit 2,240 MW coal-fired 

generation capacity, was constructed in 1974 on the Dan River in the Piedmont area of North Carolina.2

The Belews Creek Steam Station has three landfills: the unlined Pine Hall Road Fly Ash Landfill;3 Craig 

Road Fly Ash Landfill;4 FGD Residue Landfill; 5an unlined ash impoundment, 6, 7, 8a chemical washdown 

pond, and a cooling lake (Belews Lake).

9 With the exception of the Pine Hall Road Fly Ash Landfill, 

which was closed in 2007 with an NC DENR-approved Closure Plan, all the other disposal units are 

 

1

In July 2012, Duke Power and Progress Energy merged into Duke Energy Carolinas, LLC.

2 http://www.duke-energy.com/power-plants/coal-fired/belews-creek.asp

3 The Pine Hall Landfill (NC Permit #85-03) was established in Dec. 1984 and closed in Dec. 2007; it occupied 40-

acres, has a synthetic cap plus 24” of soil and drainage layer (completed in Dec. 2008); 13 groundwater monitoring 

wells and two background wells (NC DENR’s comment to the October 2011 NODA: EPA-HQ-RCRA-2011-0392-

0267). 

4 The Craig Road Fly Ash Landfill (NC Permit #85-04) started receiving ash in Feb. 2008, Phase 1 occupies 31-

acres with overall height of 100 feet, 10 groundwater monitoring wells, and a geosynthetic liner and leachate 

collection system: NC DENR’s comment to the October 2011 NODA: EPA-HQ-RCRA-2011-0392-0267 and 

http://www.smeinc.com/belews-creek-steam-station-ash-landfill (accessed Online July 2012). Duke Energy has 

recently applied for expansion of this landfill; USACE Public Notice, December 15, 2011: 

http://www.saw.usace.army.mil/wetlands/notices/2011/Public%20Notice%20Supplement%20201100972.pdf

(accessed Online July 2012).

5 The FGD Residue Landfill (NC Permit #85-05) was established in Jan. 2008, Phase 1 occupies 22.6-acres with 

overall height of 100 feet, 12 groundwater monitoring wells, and composite-lined with leachate collection system. 

The status of both the Pine Hall and FGD waste unit liners is from NC DENR comment to the proposed CCR rule 

docket: EPA-HQ-RCRA-2009-0640-9282 and NC DENR’s comment to the October 2011 NODA docket: EPA-HQRCRA-2011-0392-0267. According to http://www.wspgroup.com/en/Welcome-to-WSP-SELLS/Sectors/All/projectlist-wspsells/Belews-Creek-Steam-Station/ (accessed Online July 2012), the FGD Landfill is underlain with a

composite liner system with a 60-mil HDPE geomembrane over a geosynthetic sodium bentonite liner.

6 The unlined impoundment (also, ‘Basin’) was established in 1974; it occupies an area of about 342-350 acres, and 

has a total capacity of about 20.3 million cubic yards volume. The Ash Basin Dike at the Belews Creek Steam 

Station is an approximate 2,000 foot long and 140 foot high earthen dike that is located on a tributary to the Dan 

River locally referred to as Little Belews Creek. CCR is discharged into the southern reaches of the impoundment 

via sluice pipe lines. Water within the impoundment is currently discharged through the Ash Basin Tower by two 

stop log weirs on the west side of the embankment: Duke Energy (2009), CHA/Lockheed Martin (2009) and Duke 

Energy reviews safety at Belews Creek, January 19, 2009 (accessed Online July 2012): 

http://www.arizonaenergy.org/News_09/News_Jan09/Duke%20Energy%20reviews%20safety%20at%20Belews%2

0Creek.htm

7 CHA/Lockheed Martin (2009).

8 http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/duke-belews.pdf (accessed Online July 2012).

9 CHA/Lockheed Martin (ibid), Section 1.3.1 and Fig. 2B. Constructed between 1972 and 1974, this pond is located 

south of the Ash impoundment and is used every 3 to 4 years. The overflow from this pond discharges into the Ash 

impoundment. The Ash impoundment pool is located at the toe of the chemical washdown pond dike. The pond 

does not directly receive CCR, only chemical cleaning water and the subsequent rinses resulting from the washdown 

and maintenance of the condensate and steam side of the boiler tubes. Completed in 1973, Belews Lake has a 

surface area of 3,863 acres and a shoreline of approximately 88 miles. It is impounded by a rolled earth fill dam with 

a concrete spillway across Belews Creek:http://www.duke-energy.com/lakes/facts-and-maps/belews-lake.asp
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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currently active. The site has no offsite groundwater monitoring locations but regular groundwater 

monitoring is performed in the vicinity of the landfills.10

In June 1977, the DWQ issued to Progress Energy for the Belews Creek Plant an NPDES Permit (No. 

NC0024406), which has been subsequently renewed. The current Permit was re-issued on October 12, 

2012 and is valid to February 28, 2017. This Permit regulates the Plant’s discharge of treated wastewater 

into the West Belews Creek/Belews Lake and the Dan River through several outfalls (with the Ash Basin 

effluent discharged at Outfall 003 and the FGD wet scrubber wastewater treatment system - at internal 

Outfall 002). 11

Impact and Damage Claims: Based on an October 2005 sampling event, EIP (2010) cites 

contamination at the Pine Hall Road Fly Ash Landfill that has exceeded one or more state groundwater 

standard in 17 of 18 on-site wells. All nine wells at the more newly permitted Craig Road Fly Ash 

Landfill, and all ten wells at the new FGD Residue Landfill (both, in 2008 sampling) are also 

contaminated although the FGD Residue Landfill site appears to have been contaminated with 

undisclosed fill materials prior to its use for scrubber sludge. Finally, according to EIP (2010), voluntary 

groundwater monitoring surrounding the coal ash impoundment has detected (November 2007 sampling) 

levels of arsenic, iron, manganese, and pH that exceed state groundwater standards.12

EIP (2010) indicates that selected onsite wells have indicated onsite groundwater exceedances of MCLs 

(lead, arsenic, and selenium), along with exceedances of SMCLs (boron, iron, manganese, pH, nitrate, 

and sulfate) and state guidelines. In addition, exceedances were noted of state standards for boron, iron, 

manganese, sulfate, and TDS in surface-water draining the Pine Hall Road Landfill, and exceedances of 

iron - in surface waters draining the Craig Road Landfill. This water discharges ultimately into the manmade Belews Lake.13 The notion of seepage was recently upheld by a DWQ statement about its belief for 

there being engineered discharges from toe drains of the Ash Pond which are different locations from 

those authorized under the Plant’s NPDES Permit.14

Duke Energy (DE) submits15 that (i) there have been no documented exceedances of MCLs or other 

health-based standards in groundwater at a sufficient distance from any of the identified waste 

management units to indicate that hazardous constituents have migrated so that they could cause human 

health concerns; (ii) that EIP (2010) cites no scientific study documenting any ecological impacts to 

support a new proven damage case; and finally, (iii) there have not been any administrative rulings or 

 

10 For the location of the Plant’s waste units and monitoring wells, see (i) Attachment B, Appalachian Voices and 

Clean Water for North Carolina comment to the Steam Electric Industry/CCR Rule joint docket: EPA-HQ-RCRA2013-0209-0037 and (ii) http://portal.ncdenr.org/web/wq/hot-topics/coalashregulation/gwatermonitoring, Map.

11 Complaint and Motion for Injunctive Relief (2013a). The effluent limitations and monitoring requirements for 

discharges from Outfall 003 require sampling for the following parameters: Flow, Oil and Grease, Total Suspended 

Solids, pH, Chlorides, Total Mercury, Total Iron, Total Arsenic, Total Selenium, Total Phosphorous, Fluoride, 

Sulfates, Bromides, Total Copper, Total Silver, Total Nitrogen, and Chronic Toxicity.

12 Arsenic in underlying groundwater ranged from 0.0547 to 0.0636 mg/L - over 1.2 times the state groundwater 

standard (0.05 mg/L) and more than 6 times the federal primary MCL. Manganese exceedances ranged from 0.053 

to 2.85 mg/L, up to 57 times the 2L groundwater standard (0.05 mg/L, which is also the secondary MCL). Iron 

ranged from 0.311 to 46.5m/L, 155 times the 2L groundwater standard and secondary MCL.

13 Apparently, these discharged wastewater are diluted in the Dan River: in summer 2011, Ruhl et al., (2012) 

sampled a variety of metals as well as some major elements in Dan River upstream of the Belews Creek Station, the 

Dan River outfall, and the Dan River downstream. Their data indicate that generally the concentration of the 

measured constituents in the outfall and downstream does not increase significantly when compared with the 

upstream concentration levels. 

14 Complaint and Motion, ibid.

15 Comment to the 2011 NODA docket: EPA-HQ-RCEA-2011-0392-0215.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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court decisions with explicit findings implicating CCRs as the cause of specific damage to human health 

or the environment.

Furthermore, DE claims that the data referenced in EIP (2010) was taken from wells which were either 

background monitoring wells on power station property or located very close to the landfills and/or the 

surface impoundment on the power station’s property. Therefore, they are not representative of off-site 

groundwater concentrations. There are no off-site residential wells that are down-gradient of the power 

station’s CCR waste units. Consequently, there is no potential for a groundwater impacts to cause adverse 

human health concerns to any nearby resident. 

DE also claims that the referenced “surface water” sample location SW-2 at Pine Hall Road Landfill is, in 

fact, seepage flowing directly to the power station’s surface impoundment, which discharges via an 

NPDES permitted outfall. Alleged elevated concentrations of lead in BC-25 at the FGD Landfill only 

occurred in the first two well sampling events. Since the initial sampling events occurred, lead 

concentrations have remained well below standards. 

EPRI claims16 that in two of Belews Creek’s three waste management units (the Craig Road and FGD 

facilities), iron and manganese, two relatively common naturally occurring constituents in soils, are cited 

as indicators of CCR impacts in EIP (2010). Conversely, typical CCR indicators are low: at the FGD 

waste management unit, sulfate is less than 40 mg/L and boron is less than 0.029 mg/L in groundwater 

monitoring wells. At the Craig Road waste management unit, boron is less than 0.203 mg/L and sulfate is 

less than 63 mg/L. Both the FGD and Craig Road facilities are relatively new, and there are other 

potential sources of contamination in the surrounding area. USWAG claims17 that this case does not meet 

the criteria for a damage case because the allegations are only for on‐site groundwater and surface water. 

In 2011, the downstream town of Madison and the city of Eden, as well as buyers of these community 

water treatment plant drinking water,18 monitored unsafe levels of trihalomethane, a carcinogenic 

compound, which were in excess of or close to MCL limits set by the USEPA.19 The source of 

trihalomethane is bromide, generated by 2008-installed scrubbers in the Belews Plant, to address 

excessive air emissions of SOx and NOx compounds from the Plant’s stacks.20 Trihalomethane is 

 

16 EPRI’s comment to the proposed CCR rule’s docket: EPA-HQ-RCRA-2009-0640-9765.

17 Comment to the 2001 NODA docket: EPA-HQ-RCRA- 0392-0211: “The information provided for the Site does 

not contain any documented evidence of off‐site groundwater monitoring data or off‐site groundwater monitoring 

data showing exceedances of specified health‐based criteria.”

18 Such as Rockingham County, North Carolina and Henry County, Virginia

19 According to Massachusetts (2004): “the four trihalomethanes are byproducts of the disinfection process. Under 

its Disinfectants and Disinfection Byproducts Rule (63 FR 69390: December 16, 1998), U.S. EPA set the MCL for 

TTHMs at 0.080 mg/L. U.S. EPA did not set a Maximum Contaminant Level Goal (MCLG) for the group of 

TTHMs although there are MCLGs for some of the individual constituents, including bromodichloromethane (zero), 

bromoform (zero), dibromochloromethane (0.06 mg/L), and chloroform (0.07 mg/L).” Potential health effects from 

ingestion of TTHMs in water include liver, kidney and central nervous system problems, as well as an increased risk 

of cancer.

20 When halogens such as bromine and chlorine react with elemental mercury in the combustion zone or in the flue 

gas, they convert the mercury to forms (e.g., mercury chloride) which can be absorbed in conventional FGD 

scrubbers. Furthermore, when activated carbon is impregnated with halogens, it is considerably more effective in 

capturing the elemental mercury. Calcium bromide can be added to the coal and at various points in the air pollution 

control system prior to the wet scrubber. The SO2 wet scrubber has proven effective in removing more than 90 

percent of the mercury in the ionic form. Therefore, the calcium bromide-wet scrubber combination offers an 

alternative to the activated carbon-dry injection approach (The Mcilvaine Company, No date; URS Power, 2010; 

and URS Power, 2010a).
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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generated during the water treatment process as a result of the interaction of chlorine with the bromide in 

the course of chlorinating the raw water.

21

Evaluation against Proven Damage Criteria

Other Considerations: This site overlaps with the Belews Lake proven, ecologic damage case. The 

evaluation here addresses only recent alleged damage pertaining to different waste units.

Resolution: Due to the previously detected exceedances of North Carolina’s 2L standards, at the end of 

2007, the Pine Hall Road Landfill was closed and capped with a drainage geonet overlain by a 40 mil 

LLDPE geomembrane and two feet of soil cover. NC DENR required that a groundwater Corrective 

Action Plan and a Methane Gas Remediation Plan be submitted prior to final closure. NC DENR claims 

that it allowed the abandonment of 14 groundwater wells22 and two surface water sampling points as a 

condition of post-closure monitoring, claiming that these wells did not represent what was occurring at 

the landfill.

EIP (2010) claims23 that NC DENR has taken no action at the remaining two landfills and the 

impoundment. NC DENR responded24 that the exceedances noted in EIP (2010) in the Craig Road 

Landfill and the FGD Landfill were found by the DWM to be background levels. 

To EIP’s (2010) claims that no groundwater remediation plans were identified by the file review, NC 

DENR responded that the data reported was from wells located inside the state’s Compliance Boundary. 

Although corrective action has not been required due to lack of documentation for non-compliance, in 

2009 DWQ sent a letter to Duke Energy, directing them to place wells at their Compliance Boundaries 

(CBs) to help DENR determine if further action will be required. On October 19, 2010, the DWQ 

approved the Plant’s proposed locations of CB wells and monitoring wells, and compliance monitoring 

 

21 Winston-Salem Journal (2014), based on public-record emails between Municipalities’ water-authority officials 

with the NC DENR. North Carolina does not have state water quality standard for bromide, and NC DENR has not 

imposed the federal standard on the Plant. The Belews Creek power plant and several others owned by Duke Energy 

are not violating CWA as they discharge unlimited amounts of bromide. According to Duke Energy, the utility 

agreed to assist Madison and Eden financially to upgrade their water-treatment systems, to facilitate scrubbing water clean 

of bromide without producing unsafe levels of trihalomethane: in Eden, by helping to fund the city’s conversion to another 

disinfection method (chloramines), and in Madison, by helping to install a new aeration technology that reduced organic content.

22 For location of these 14 wells, located along or slightly internally to the landfill’s compliance boundary, see:

http://portal.ncdenr.org/web/wq/hot-topics/coalashregulation/gwatermonitoring, Map.

23 EIP (2010), page 53.

24 Comment to the docket: EPA-HQ-RCRA-2009-0640-9282.

Criteria Evaluation

Criterion 1: Documented exceedances of primary maximum 

contaminant levels (MCLs) or other health-based standards 

measured in groundwater at sufficient distance from the waste 

management unit to indicate that hazardous constituents have 

migrated to the extent that they could cause human health

concerns

 No offsite groundwater exceedances of 

MCLs 

 Onsite groundwater data exceeded the 

primary EPA MCLs for lead, arsenic, and 

selenium 

Criterion 2: Where a scientific study provides documented 

evidence of another type of damage to human health or the 

environment (e.g., ecological damage)

 None

Criterion 3: Where there has been an administrative ruling or 

court decision with an explicit finding of specific damage to 

human health or the environment

 None
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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wells were constructed at the CBs of the coal ash pond in December 2010.25 Finally, early in 2012, all 

three landfills were under detection monitoring, but were moving toward assessment monitoring.26

Based on monitoring data from this site27 showing some constituents exceeded state water standards,28 on 

October 10, 2012, the Southern Environmental Law Center (SELC) filed a complaint on behalf of several 

citizens’ groups with the North Carolina Environmental Management Commission requesting the 

following rulings:

a) Operators of coal ash lagoons with NPDES permits first issued on or before December 30, 

1983, must take corrective action pursuant to 15A N.C. Admin. Code 2L .0106(c) when their 

activity results in an increase in the concentration of a substance in excess of groundwater quality 

standards, whether or not groundwater quality standards have been exceeded at or beyond a 

compliance boundary around the CCR ponds;

b) Operators of CCR ponds with NPDES permits first issued on or before December 30, 1983, 

must take immediate action to eliminate sources of contamination that cause a concentration of a 

substance in excess of groundwater quality standards, in advance of their separate obligation to 

propose and implement a corrective action plan for the restoration of groundwater quality 

contaminated by those sources; and

c) Operators of closed and inactive CCR ponds must implement corrective action as unpermitted 

activities pursuant to 15A N.C. Admin. Code 2L .0106(c).

On December 3, 2012, the North Carolina Environmental Management Commission (EMC) upheld state 

regulators' interpretation of groundwater protection requirements for coal ash lagoons: in taking that 

action, the commission rejected a request by environmental groups for an order that would require the 

cleanup of groundwater at 14 coal-fired facilities in North Carolina. The commission found the Division 

of Water Quality correctly interpreted state law and regulations and that pre-1984 lagoons at issue had 

compliance boundaries even though, for corrective action purposes, they were deemed “non-permitted.”29

In response to EMC’s decision, on January 8, 2013, The Southern Environmental Law Center filed the 

complaint in Wake County Superior Court on behalf of several conservation groups30 ‘to protect North 

Carolina communities and groundwater from toxic coal ash contamination at 14 coal-fired power plants 

 

25 Complaint and Motion, ibid. Seven of the newly installed nine monitoring wells are sited along the Active Ash 

Basin’s compliance boundary or slightly internally to it, whereas two wells (MW-202S and MW-202D) are located 

over 2,000 feet south of and outside the Basin’s compliance boundary, about 300 feet internally from the plant’s 

property boundary, and about 600 feet away from the shore of Belews Lake: http://portal.ncdenr.org/web/wq/hottopics/coalashregulation/gwatermonitoring, Map. The parameters being monitored (semi-annual reports) are 

antimony, arsenic, barium, boron, cadmium, chromium, chloride, copper, iron, lead, manganese, mercury, nickel, 

nitrate, pH, selenium, sulfate, thallium, TDS, Water Level, and zinc. On June 17, 2011, the DWQ adopted a Policy 

for Compliance Evaluation of Long-term Permitted Facilities with No Prior Groundwater Monitoring Requirements.

26 DWQ feedback, in response to EPA’s Region 4 inquiry following stakeholders’ complaints in the 2010 Charlotte 

Public Hearing (a January 3, 2012 email from L. DiGaetano, EPA R4, to A. Livnat, EPA/OSWER); also, DWQ 

issued a letter requesting facility to submit a groundwater assessment work plan for all three landfills on Nov. 9, 

2011: NC DENR’s comment to the October 2011 NODA: EPA-HQ-RCRA-2011-0392-0267.

27 For the period January 2010 to July 2012.

28 Cape Fear River Watch and Others (2012). DENR has documentation of exceedances of groundwater standards 

inside the compliance boundaries of fourteen coal-fired power plants in North Carolina with coal ash impoundments 

permitted prior to 1984, without modern construction techniques and permitting standards. Similarly to the other 13 

facilities, groundwater inside the compliance boundary of the Belews Creek Steam Electric Plant exceeds standards 

for multiple contaminants.

29https://essential.bna.com/login/signin?msg=deny&url=http%3A%2F%2Fnews.bna.com%2Fdeln%2Fdisplay%2Fli

nk_res.adp%3Ffedfid%3D28835414%26fname%3Da0d4y8f2r4%26vname%3Ddennotallissues&authenDec=-203

30 The Cape Fear River Watch, Sierra Club, Waterkeeper Alliance, and Western North Carolina Alliance.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

8

across the state.’ The lawsuit would require cleanup of groundwater contamination around unlined coal 

ash ponds, including those of Duke’s Power Belews Creek Station. 31

A recent NC DENR’s lawsuit against Duke Energy (August 16, 2013) indicates that, based on 

groundwater monitoring data from January 2011 through July 16, 2013, groundwater exceedances from 

the 2L Groundwater Standard at or beyond the compliance boundary of the Plant’s ash ponds include the 

following parameters: iron, manganese, and chromium.32

ICF (2010) Rationale: Potential Damage. < Groundwater exceedances of the primary EPA MCL for 

arsenic, lead, and selenium have been found on site.>

References

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

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #15. The 

Environmental Integrity Project and EarthJustice. February 24, 2010.

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

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

Appendix B, Case #15. ICF, 10/2010. 

CHA/Lockheed Martin (2009): EPA’s Coal Combustion Surface Impoundments (Task 3) Final Report, 

Duke Energy Belews Creek Steam Station, Walnut Cove, North Carolina (December 8, 2009). Accessed 

Online January 2014. 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/duke_belews_final.pdf

Duke Energy (2009): Duke Energy Response to CERCLA 104(e) Request for Information, Belews Creek 

Steam Station, March 25, 2009. Accessed Online October 2012.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys/duke-belews.pdf

Cape Fear River Watch and Others (2012): Request for Declaratory Ruling to the North Carolina 

Environmental Management Commission (“EMC”) for a ruling clarifying application of the EMC’s 

groundwater protection rule to coal ash lagoons1 that contaminate groundwater in excess of water quality 

standards. Cape Fear River Watch, Sierra Club, Waterkeeper Alliance, and Western North Carolina 

Alliance, Petitioners. October 10, 2012. Accessed Online October 2012. 

http://www.southernenvironment.org/uploads/fck/2012%2010-

10%20Pet'r%20Mot%20%20For%20Declaratory%20Ruling%20(Motion%20only).pdf

 

31 Southern Environmental Law Center Press Release, January 8, 2013: 

http://www.southernenvironment.org/newsroom/press_releases/groups_in_court_to_stop_groundwater_contaminati

on_from_toxic_coal_ash_waste/

32 Complaint and Motion, ibid, Plaintiff’s Exhibit No. 10. The maximum exceedances (with the 2L Standard for 

reference in parenthesis) were recorded as follows: iron (300 μg/L): 14,100 μg/L (MW-204S); manganese (50 

μg/L): 3,600 μg/L (MW-204S); and chromium (10 μg/L): 15 μg/L (MW-202D; however, this was the first sampling 

event of this well and the single chromium exceedance recorded there between 2011 and 2014). In addition, eight of 

the wells exhibited non-compliant pH values during most of the 2011-2014 quarterly monitoring events (minimum 

value: 5.1): http://portal.ncdenr.org/web/wq/hot-topics/coalashregulation/gwatermonitoring, Data. DWQ indicates 

that over half of the wells with iron exceedances showed three samples that were under the 2L Groundwater 

Standard “and thus the compliance status for these wells is unclear pending further information.” Due to these 

exceedances, “the DWR staff is working with the Defendant to determine if these exceedances are naturally 

occurring or if corrective action will be required.” 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

9

Ruhl et al., (2012): The Impact of Coal Combustion Residue Effluent on Water Resources: A North 

Carolina Example. Laura Ruhl, Avner Vengosh, Gary S. Dwyer, Heileen Hsu-Kim, Grace Schwartz,

Autumn Romanski, and S. Daniel Smith. Environmental Science & Technology. Published Online 

September 30, 2012. Accessed Online October 2012.

http://pubs.acs.org/doi/pdfplus/10.1021/es303263x

Complaint and Motion for Injunctive Relief (2013a): State of North Carolina v. Duke Energy Carolinas 

LLC, N.C. Supreme Ct. (Mecklenburg). Docket number unavailable, August 16, 2013. Accessed Online 

August 2013.

http://portal.ncdenr.org/web/wq/hot-topics/duke_energy_aug2013injunctions

Winston-Salem Journal (2014): Discharge from Belews Creek power plant affects water quality. 

Winston-Salem Journal, April 13, 2014. Accessed Online July 2014.

http://www.journalnow.com/news/local/discharge-from-belews-creek-power-plant-affects-waterquality/article_8e6f8202-a305-580d-a389-d96da37d5629.html

Massachusetts (2004): Current Regulatory Limit: Total Trihalomethanes (TTHMs), Massachusetts’ 

Energy and Environmental Affairs website, May 2004, Update. Accessed Online July 2014.

http://www.mass.gov/eea/agencies/massdep/water/drinking/standards/total-trihalomethanes-tthms.html

The Mcilvaine Company (No date): Big Market for Chemicals to Capture Mercury, Bob Mcilvaine. 

Accessed Online August 2014.

www.pollutionsolutions-online.com/article_read/1254/

URS Power (2010): The Balance-of-Plant Impacts of Calcium Bromide Injection as a Mercury Oxidation 

Technology in Power Plants. Dombrowski, K., S. McDowell, M. Berry, A. Freeman Sibley, R. Chang, 

and B. Vosteen. URS Power Technical Paper #27, 2010. Accessed Online August 2014.

The Balance-of-Plant Impacts of Calcium Bromide Injection

URS Power (2010a): Evaluation of Mercury Control Technologies at a Power Plant without SCR Firing 

Eastern Bituminous Coal. Dombrowski, K., J. Paradis, B. Looney, A. Freeman Sibley, and R. Chang. 

URS Power Technical Paper #77, 2010. Accessed Online August 2014.

Evaluation of Mercury Control Technologies at a Power ...

PTb34. Cape Fear Steam Plant, Progress Energy, Moncure, Chatham County, NC

Carolina

Type: Surface Impoundments.

Background and Description: The Cape Fear Steam Plant was constructed in 1923 in a generally 

forested, rural area adjacent to the confluence of the Haw and Deep Rivers in southern Chatham County.33

 

33 The Cape Fear Plant is owned by the merged (July 2012) Duke Power (now: Duke Energy Carolinas) and 

Progress Energy (now: Progress Energy Carolinas). It began commercial operation in 1923 as the company’s first 

coal-fired facility. Additional units came into service in 1924, 1956, 1958, and 1969. Presently, the plant consists of 

two coal-fired units (316 MW steam) and two combustion turbine generating units (46 MW): https://www.progressenergy.com/assets/www/docs/company/plantbrochure.pdf. Progress Energy announced late in 2009, then again in 

September 2011 (Bloomberg BNA12/2009 and 9/28/2011, respectively), that it plans on retiring the Plant’s coal 

fired units because of the upcoming stringent pollution control requirements that make retrofitting into gas-fueled 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

10

Prior to the Plant’s October 2012 retirement, the Plant operated five unlined ash impoundments, one 

active and four essentially inactive. 34 The impoundments covered a total area of 153 acres and the active 

impoundment had a capacity of 1764 acre-feet.35 Voluntary groundwater monitoring began in 2007 from 

piezometers next to the impoundments; however, no offsite groundwater data is available.36

In August 1976, the DWQ issued to Progress Energy for the Cape Fear Plant an NPDES Permit (No. 

NC0003433) which was renewed subsequently. The current Permit was re-issued in July 2011 and is 

valid to July 31, 2016. This Permit regulates both the Plant’s discharge of wastewater into an unnamed 

tributary of the Cape Fear River through Outfall 007.37

The site is located in the Durham Basin in Piedmont North Carolina, a lowland area floored with Upper 

Triassic rocks and defined on the east and west by older Paleozoic slates and Carboniferous granites.38

Chemical weathering of the sedimentary rock (sandstones, conglomerates, and mudstones) formed layers 

of residual soil comprising generally silt, clay, silty-clay, and silty-sand or sandy-silt.

Impact and Damage Claims: EIP (2010) indicates that onsite groundwater monitoring data exceeded 

the primary EPA Maximum Contaminant Level (MCL) for lead. On-site groundwater data also exceeded 

North Carolina Code 2L Groundwater Standards and EPA SMCLs for boron, chromium,39 iron, 

manganese, and sulfate.40

 

units more cost-effective. According to Duke Energy’s Cape Fear website: http://www.duke-energy.com/powerplants/coal-fired/cape-fear.asp (accessed August 20, 2013), two of the site's six coal-fired units were retired in 1977 

and two in 2011. The remaining two coal-fired units, along with one of four oil-fueled combustion turbine units on 

site, were retired in October 2012. According to Duke Energy (2014), in mid-2014, the Plant has been demolished 

and next would be subjected to boilers’ implosion. 

34 According to CHA/Lockheed Martin (2009), the impoundments were established in 1956, 1963, 1970, 1978, and 

1985 (NPDES Permit # NC0003433). Two of these ponds, the 1963 Ash Pond and the 1970 Ash Pond, are often 

considered as one structure because the 1970 Ash Pond was constructed as an extension of the 1963 Ash Pond. As 

of 2009, the 1978 and 1985 Ash Ponds were permitted to receive sluiced CCRs with the 1985 Ash Pond actively 

receiving CCRs. In 2007, Progress Energy decided to construct an interior ash pond on top of the sedimented CCR 

in a “Pond within a Pond” concept to increase the overall pond capacity. The 1963/70 and the 1978 Ponds do not 

receive any CCRs: the former serves as a receptacle for the storm water, coal pile run off, and low volume 

categorical waste water the plant generates, whereas the latter merely serves as a receptacle for storm water.

35 However, according to Progress Energy (2009), the areas of the 1970, 1978, and 1985 impoundments are 50, 43, 

and 65 acres, respectively.

36 According to the Site Map with Current monitoring Well Locations and Groundwater Contours as of December 

2010, prepared by Catlin for Progress Energy, there is a slight mounding (about 2 feet) towards the Cape-Fear River 

that is generated by the combined “Semi-Active Ash Pond (1978)” and the Semi-Active Ash Pond (1963 & 1970), 

which are located closer to the river banks and geohydrologically down-flow from the “Active Ash Pond (1985)”. 

See: http://portal.ncdenr.org/web/wq/hot-topics/coalashregulation/gwatermonitoring, Map.

37 Complaint and Motion for Injunctive Relief (2013). The effluent limitations and monitoring requirements for 

discharges from Outfall 007 require sampling for the following parameters: Flow, Total Chromium, Total Arsenic, 

Total Selenium, Total Mercury, Total Nickel, Total Copper, Total Nitrogen, Total Phosphorous, Fecal Coliform, 

Temperature, pH, and Chronic Toxicity.

38 Harrington (1951) and Bain and Harvey (1977).

39 Chromium is actually a primary (MCL) groundwater constituent, and not a secondary (SMCL) constituent. 

40 According to EIP (2010), groundwater monitoring found lead at concentrations as high as 0.0533 mg/L, 3.5 times 

the North Carolina 2L groundwater standard and federal primary MCL of 0.015 mg/L. Chromium was found at 0.1 

mg/L, 2 times the North Carolina 2L groundwater standard of 0.05 mg/L. Boron concentrations were as high as 5.24 

mg/L, over 16 times the North Carolina 2L groundwater standard of 0.315 mg/L. Manganese was measured up to 

9.55 mg/L, 191 times the North Carolina 2L groundwater standard of 0.05 mg/L. Iron was measured up to 114 

mg/L, 380 times the North Carolina 2L groundwater standard of 0.3 mg/L. Sulfate was measured up to 448 mg/L, 

1.8 times the North Carolina 2L groundwater standard of 250 mg/L. All wells are within 125 ft. of the 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

11

EPRI41 claims that for lead and chromium, high concentrations in the first samples collected from new 

wells were reported as CCR releases, despite the fact that the concentrations immediately decreased and 

remained low for the next several years. USWAG claims42 that this case does not meet the criteria for a 

damage case because the allegations are only for on‐site groundwater. 

Seeps identified at the Plant include potential discharges from its 1985 Ash Pond, which are at different 

locations from the internal outfalls and stormwater outlets described in the NPDES Permit.43

A recent NC DENR’s lawsuit against Duke Energy Progress indicates that based on groundwater 

monitoring data from December 2010 through July 16, 2013 groundwater exceedances of the 2L 

Groundwater Standard at or beyond the compliance boundary of the Plant’s ash ponds include the 

following parameters:44 boron, selenium, and sulfate.

Evaluation against Proven Damage Criteria45

 

impoundment, so the extent of the contamination is unknown. Progress Energy’s, in its comment to the October 

2011 NODA’s docket: EPA-HQ-RCRA-2011-0392-0272, claims that it was not established if natural background 

levels of the detected metals supersede listed standards. That will be determined in accordance with state 

groundwater quality regulations and guidance by the state agency.

41 Comment to the docket: EPA-HQ-RCRA-2009-0640-9765.

42 Comment to the 2001 NODA docket (EPA-HQ-RCRA-2011-0392-0211): “The information provided for the site 

does not contain any documented evidence of off‐site groundwater monitoring data or off‐site groundwater 

monitoring data showing exceedances of specified health‐based criteria”.

43 Grab samples taken during an NPDES inspection on September 23, 2009 from swamp/drainage area near 

permitted Internal Outfall 005 indicated the possibility of seepage from the 1985 Ash Pond: Complaint and Motion 

for Injunctive Relief (2013), page 26.

44 Complaint and Motion, ibid, Plaintiff’s Exhibit No. 8. The maximum exceedances (with the 2L Standard for 

reference in parenthesis) were recorded as follows: boron (700 μg/L): 2,950 μg/L; selenium (20 μg/L): 41.2 μg/L; 

and sulfate (250 mg/L): 630 mg/L. Additional (so called ‘other’ in Complaint and Motion, ibid) exceedances 

included arsenic (a single sampling in CTMW-8); iron (with widely ranging concentrations of between 416 and 

52,700 μg/L in one set of compliance wells), manganese (with widely ranging concentrations of between 51.9 and 

18,000 μg/L in one set of compliance wells), TDS, and pH (Dec. 2010 to March 2013 samplings yielded 9.1-10.3, 

but recent sampling has no longer identified pH values outside the acceptable 2L Groundwater Standard range of 6.5 

to 8.5). Due to these ‘other exceedances’, “the DWR staff is working with the Defendant to determine if these 

exceedances are naturally occurring or if corrective action will be required.” For the locations of the site’s 13 

monitoring wells as well as all the monitoring well Dec. 2010-March 2014 sample analyses data, see:

http://portal.ncdenr.org/web/wq/hot-topics/coalashregulation/gwatermonitoring, Map, Data, respectively. 

45 ICF (2010).

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels (MCLs) or 

other health-based standards measured in 

groundwater at sufficient distance from the waste 

management unit to indicate that hazardous 

constituents have migrated to the extent that they 

could cause human health concerns

 Onsite groundwater data exceeded primary EPA MCL 

for lead.

 Onsite groundwater data exceeded North Carolina 2L 

Groundwater Standards (boron, chromium, iron, 

manganese, and sulfate) and EPA SMCLs (iron, 

manganese, and sulfate).

 No offsite groundwater data are available.

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage 

to human health or the environment (e.g., 

ecological damage)

 None
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

12

Other Considerations: The onsite groundwater exceedance for lead occurred as a single exceedance in 

one piezometer, which also had high total dissolved solids (TDS). This may suggest that this sole lead 

exceedance was associated with particulate matter in the sample matrix, and not representative of the 

aquifer conditions. 

Resolution: NC DENR has not required any corrective action and has no plans to take any regulatory 

action until groundwater contamination reaches the Compliance Boundary. NC DENR claims46 that the 

data reported was from wells located inside the State Compliance Boundary.47 Although corrective action 

has not been required due to lack of documentation for non-compliance, in 2009 DWQ sent a letter to 

Progress Energy, directing them to place wells at their Compliance Boundaries to help DENR determine 

if further action will be required. Compliance monitoring wells were constructed at the CBs of the coal 

ash ponds in September 2010, and on January 4, 2011, the DWQ approved the Plant’s proposed locations 

of CB wells and monitoring wells.48

Based on monitoring data from this site49 showing some constituents exceeded state water standards,50 on 

October 10, 2012, the Southern Environmental Law Center (SELC) filed a complaint on behalf of several 

citizens’ groups with the North Carolina Environmental Management Commission requesting the 

following rulings:

a) Operators of coal ash lagoons with NPDES permits first issued on or before December 30, 

1983, must take corrective action pursuant to 15A N.C. Admin. Code 2L .0106(c) when their 

activity results in an increase in the concentration of a substance in excess of groundwater quality 

standards, whether or not groundwater quality standards have been exceeded at or beyond a 

compliance boundary around the CCR ponds;

b) Operators of CCR ponds with NPDES permits first issued on or before December 30, 1983, 

must take immediate action to eliminate sources of contamination that cause a concentration of a 

substance in excess of groundwater quality standards, in advance of their separate obligation to 

propose and implement a corrective action plan for the restoration of groundwater quality 

contaminated by those sources; and

c) Operators of closed and inactive CCR ponds must implement corrective action as unpermitted 

activities pursuant to 15A N.C. Admin. Code 2L .0106(c).

 

46 North Carolina DENR comment to the docket: EPA-HQ-RCRA-2009-0640-9282.

47 Progress Energy’s, in its comment to the October 2011 NODA’s docket: EPA-HQ-RCRA-2011-0392-0272, 

likewise claims that all the identified monitoring results are within the compliance boundary and not applicable to 

determination of a damage case.

48 Complaint and Motion for Injunctive Relief (2013). The parameters being monitored are aluminum, antimony, 

arsenic, barium, boron, cadmium, chromium, chloride, copper, iron, lead, manganese, mercury, nickel, nitrate, pH, 

selenium, sulfate, thallium, TDS, Water Level, and zinc. On June 17, 2011, the DWQ adopted a Policy for 

Compliance Evaluation of Long-term Permitted Facilities with No Prior Groundwater Monitoring Requirements.

49 For the period January 2010 to July 2012.

50 Cape Fear River Watch and Others (2012). DENR has documentation of exceedances of groundwater standards 

inside the compliance boundaries of fourteen coal-fired power plants in North Carolina with coal ash impoundments 

permitted prior to 1984, without modern construction techniques and permitting standards. Similarly to the other 13 

facilities, groundwater inside the Compliance Boundary of the Cape Fear Steam Electric Plant exceeds standards for 

multiple contaminants.

Criterion 3: Where there has been an 

administrative ruling or court decision with an 

explicit finding of specific damage to human 

health or the environment

 North Caroline DENR has not required any corrective 

action and has no plans to take any regulatory action 

until groundwater contamination reaches the 

compliance boundary.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

13

On December 3, 2012, the North Carolina Environmental Management Commission (EMC) upheld state 

regulators' interpretation of groundwater protection requirements for coal ash lagoons: in taking that 

action, the commission rejected a request by environmental groups for an order that would require the 

cleanup of groundwater at 14 coal-fired facilities in North Carolina. The commission found the Division 

of Water Quality correctly interpreted state law and regulations and that pre-1984 lagoons at issue had 

compliance boundaries even though, for corrective action purposes, they were deemed “non-permitted.”51

In response to EMC’s decision, on January 8, 2013, SELC filed the complaint in Wake County Superior 

Court on behalf of several conservation groups52 ‘to protect North Carolina communities and groundwater 

from toxic coal ash contamination at 14 coal-fired power plants across the state.’ The lawsuit would 

require cleanup of groundwater contamination around unlined coal ash ponds, including those of Progress 

Energy’s Cape Fear Plant.53

On August 16, 2013, the North Carolina Department of Environment and Natural Resources filed, in the 

Superior Court of Wake County, a lawsuit against Duke’s Cape Fear Plant; this was one of two lawsuits 

filed by NC DENR against 12 of Duke Energy’s facilities in North Carolina alleging groundwater 

pollution.54

ICF (2010) Rationale: Potential Damage. <Groundwater exceedance of the primary EPA MCL for 

lead was found in a single sample from one onsite piezometer. Onsite groundwater also exceeded North 

Carolina Code 2L Groundwater Standards and/or EPA SMCLs. There are no administrative rulings or 

court decisions associated with the site.>

References

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

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #13. Environmental 

Integrity Project and Earthjustice. February 24, 2010.

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

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

Appendix B, Case #13. ICF, 10/2010.

 

51https://essential.bna.com/login/signin?msg=deny&url=http%3A%2F%2Fnews.bna.com%2Fdeln%2Fdisplay%2Fli

nk_res.adp%3Ffedfid%3D28835414%26fname%3Da0d4y8f2r4%26vname%3Ddennotallissues&authenDec=-203

52 Bloomberg BNA (01/2013). The Cape Fear River Watch, Sierra Club, Waterkeeper Alliance, and Western North 

Carolina Alliance. Cape Fear River Watch v. N.C. Environmental Management Commission, N.C. Super. Ct., No. 

13-cvs-93, 1/8/13: https://remoteworkplacedr.epa.gov/env.nsf/id/maln93rurc/$File/,DanaInfo=.aoqBerfFjwv+NC%20ash%20suit.pdf.

53 Southern Environmental Law Center Press Release, January 8, 2013: 

http://www.southernenvironment.org/newsroom/press_releases/groups_in_court_to_stop_groundwater_contaminati

on_from_toxic_coal_ash_waste/.

54 Bloomberg BNA (8/2013) and Complaint and Motion for Injunctive Relief (2013). According to the lawsuits, 

monitoring at the compliance boundaries of the 12 power plants showed levels of chemical constituents that 

exceeded state groundwater standards. Unpermitted discharges were observed from coal ash ponds at most of the 

facilities as well. DENR seeks a court order to prevent future groundwater pollution and unpermitted discharges, as 

well as an assessment of the contaminants and their sources. The alleged violations, if uncorrected, “pose a serious 

danger to the health, safety, and welfare of the people of the State of North Carolina and serious harm to the water 

resources of the State,” the complaints allege.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

14

CHA/Lockheed Martin (2009): Progress Energy Carolinas Cape Fear Plant, Assessment of Dam Safety 

Coal Combustion Surface Impoundments (Task 3) Final Report, (September 14, 2009). Accessed Online 

July 2012. http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys2/cape-fear-final.pdf 

Progress Energy (2009): Progress Energy Response to CERCLA 104(e) Request for Information, Cape 

Fear Steam Station, March 25, 2009. Accessed Online January 2014.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/progress-capefear.pdf

Harrington (1951): Structural Analysis of the West Border of the Durham Triassic Basin, John W. 

Harrington. Bulletin of the Geologic Society of America, 62 (1951) 2, pp. 149-158. Accessed Online July 

2012.

http://gsabulletin.gsapubs.org/content/62/2/149.abstract 

Bain and Harvey (1977): Field Guide to the Geology of the Durham Triassic Basin: George L. Bain and 

Bruce W. Harvey, Carolina Geological Society Fortieth Anniversary Meeting, October 7-9, 1977. 

Accessed Online April 2012.

http://www.carolinageologicalsociety.org/CGS/1970s_files/gb%201977.pdf 

Bloomberg BNA (12/2009): Progress Energy Announces Plans to Retire 11 N.C. Coal-Fired Units. 

Bloomberg BNA Daily Environmental Report, 12/02/2009. Accessed Online August 2013.

https://remoteworkplacedr.epa.gov/deln/DELNWB/,DanaInfo=.anfyvDgthHlyx+split_display.adp?fedfid

=15791791&vname=dennotallissues&jd=a0c1n6h5y6&split=0

Bloomberg BNA (09/2011): Progress Energy Plant Closures to be Accelerated Due to Fuel Costs. 

Bloomberg BNA Daily Environmental Report, 9/28/2011. Accessed Online August 2013.

https://remoteworkplacedr.epa.gov/deln/DELNWB/,DanaInfo=.anfyvDgthHlyx+split_display.adp?fedfid

=23007531&vname=dennotallissues&jd=a0c9e2j3r3&split=0

Bloomberg BNA (01/2013): Groups File Suit Seeking Groundwater Cleanup at North Carolina Coal Ash 

Ponds. Bloomberg BNA Daily Environmental Report, 01/09/2013. Accessed Online August 2013.

https://remoteworkplacedr.epa.gov/deln/DELNWB/,DanaInfo=.anfyvDgthHlyx+split_display.adp?fedfid

=29062161&vname=dennotallissues&jd=a0d5y2u6c9&split=0

Bloomberg BNA (8/2013): North Carolina Sues Duke Energy for Alleged Contamination From Coal Ash 

at 12 Facilities, Bloomberg BNA Daily Environmental Report, 08/19/2013. Accessed Online August 

2013. 

https://remoteworkplacedr.epa.gov/deln/DELNWB/,DanaInfo=.anfyvDgthHlyx+split_display.adp?fedfid

=35564886&vname=dennotallissues&jd=a0e0u5j3u1&split=0

Cape Fear River Watch and Others (2012): Request for Declaratory Ruling to the North Carolina 

Environmental Management Commission (“EMC”) for a ruling clarifying application of the EMC’s 

groundwater protection rule to coal ash lagoons1 that contaminate groundwater in excess of water quality 

standards. Cape Fear River Watch, Sierra Club, Waterkeeper Alliance, and Western North Carolina 

Alliance, Petitioners. October 10, 2012. Accessed Online October 2012.

http://www.southernenvironment.org/uploads/fck/2012%2010-

10%20Pet'r%20Mot%20%20For%20Declaratory%20Ruling%20(Motion%20only).pdf

Complaint and Motion for Injunctive Relief (2013): State of North Carolina v. Duke Energy Progress 

Inc., N.C. Super. Ct. (Wake), docket number unavailable, August 16, 2013. Accessed Online August 

2013. 

http://portal.ncdenr.org/web/wq/hot-topics/duke_energy_aug2013injunctions
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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Duke Energy (2014): Coal Plant Decommissioning Program, Duke Energy’s website. Accessed Online 

July 2014.

http://www.duke-energy.com/about-us/decommissioning-program.asp

PTb35. Dan River Steam Station, Duke Energy,55 Eden, Rockingham County, NC56

Type: Surface Impoundments and Landfill.

Background and Description: The Dan River Steam Station, a coal fired power plant located on the 

north bank of the Dan River in Eden, Rockingham County, North Carolina, began operation in 1949.57

The original coal combustion residual (CCR) impoundment was built in 1956 immediately next to the 

Dan River and had its embankment walls raised twice, in 1967 and 1977. A dike was also built across the 

impoundment to divide it into the two units (Primary and Secondary ponds) that still exist today.58 The 

two unlined impoundments covered a total of 39 acres with a storage capacity of 664 acre feet.59 The 

impoundments were occasionally dredged with the dredged CCR stored in an 8-acre, unlined landfill 

north of the ponds.60 The landfill was capped and has been inactive since 2005.61 The plant began 

voluntary groundwater monitoring in 1993; however, no offsite monitoring data is available.62

In August 1976, the DWQ issued to Progress Energy for the Dan River Plant an NPDES Permit (No. 

NC0003468), subsequently renewed. The current Permit was re-issued on January 31, 2013 and is valid 

to April 30, 2017. This Permit regulates the Plant’s discharge of treated wastewater into the Dan River 

through several outfalls (with the Ash Basin effluent discharged at Outfall 002).63

 

55 In July 2012, Duke Power and Progress Energy merged into Duke Energy Carolinas, LLC.

56 For the proven damage case that is associated with the February 2014, coal ash slurry spill into the Dan River, see 

a separate write-up in the technical support document (Compendium) on damage cases, Module # PR15.

57 The Dan River Steam Station, with a combined generation capacity of 380 MW, had three coal units: The first 

unit came online in 1949, the second in 1950, and the third in 1955. 

http://www2.rockinghamnow.com/news/2012/mar/31/out-old-more-efficient-ar-1809111/. According to Duke 

Energy’s Dan River website: http://www.duke-energy.com/power-plants/coal-fired/dan-river.asp (visited August 21, 

2013), the three coal-fueled generation units were retired on April 1, 2012. In December 2012, Duke Energy 

launched the commercial operation of the new 620-MW Dan River Combined-Cycle, natural gas-fueled Station. 

According to Duke Energy (2014), in mid-2014 the Plant has been demolished and would be next subject to boilers’ 

implosion. 

58 The ponds received sluiced fly and bottom ash, boiler slug, flue gas emission control residuals, as well as water 

treatment effluents, boiler blow down, coal pile runoff, storm water runoff, and mill rejects.

59 Paul Rizzo Associates (2009).

60 The landfill goes back to the Plant’s inception. Based on information pertaining to the several recent decades, 

material was placed wet into the landfill’s area in the early 1980s and in 2000. Placements in 2002 and 2007 were 

hauled by truck. As inferred from the power plant’s post-March 2012 Ash Basin Compliance Monitoring Wells 

Map, after closure of the original landfill in 2005, a new, adjacent landfill located to the southwest, started 

operating: http://portal.ncdenr.org/web/wq/hot-topics/coalashregulation/gwatermonitoring, Table. 

61 Capping comprises compacted soil, 12” thick on top and 18” thick on slopes. The 2005 closing date is from 

NCDENR’s comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0267.

62 According to EIP (2010a), the full extent of the groundwater contamination is unknown. Groundwater testing was 

only conducted within the boundaries of the CCR impoundment structure because the impoundment extends all the 

way to the Dan River, making down-gradient groundwater monitoring difficult. High levels of iron, lead, and 

manganese in wells presumed to be “background” indicate possible contamination from the on-site dry coal ash 

storage facilities. Groundwater monitoring has only targeted the CCR ponds, ignoring the CCR landfill.

63 Complaint and Motion for Injunctive Relief (2013a). The effluent limitations and monitoring requirements for 

discharges from Outfall 002 require sampling for the following parameters: Flow, Oil and Grease, Total Suspended 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

16

According to a report presented in Paul Rizzo Associates (2009),64 the Dan River Steam Station is located 

within the Piedmont Physiographic Province of North Carolina. The site lies within the Dan River Group 

of the Triassic Basin, within this physiographic province. The rock types underlying the station are 

primarily red to brown sandstone, mudstone, and conglomerate. Soils (residuum) in the site vicinity 

consist of fine sandy silt, fine- to medium-sandy silt with rock fragments, fine- to medium-sandy clayey 

silt, and fine- to medium-sandy silty clay. In the area of the existing steam station, up to 30 feet of 

soil/weathered rock is present.65

Groundwater in the basin occurs in a system composed of two interconnected layers: residuum and 

weathered rock overlying fractured bedrock, although there is some porosity available for water storage in 

the sandstone layers. Typically, the residuum is saturated, and the water table fluctuates within it. Watermovement is generally within the weathered rock and fractured bedrock. Topography exerts an influence 

on both weathering and the opening of fractures, while the weathering of the rock and soil modifies both 

transmissive and storage characteristics.66

Impact and Damage Claims: Groundwater: EIP (2010a) indicates that groundwater monitoring has 

found contamination in onsite wells at various times since monitoring began in 1993. The report notes 

that lead was above the primary EPA Maximum Contaminant Level (MCL),67 chromium and silver were 

above state groundwater criteria, and iron and sulfate were above the secondary EPA MCLs (SMCLs). 

The report notes that because the impoundment is on the bank of the river, down-gradient monitoring is 

difficult and testing occurs within or on the edge of the impoundment. Only the impoundments have been 

subject to groundwater monitoring, and no data was available for the landfill at that time. 

Duke Energy claims68 that the data referenced in EIP (2010a) was taken from monitoring wells which 

were either background monitoring wells on station property or were located very close to the surface 

impoundments on station property. Therefore, they do not represent off-site groundwater concentrations. 

Moreover, four of the parameters noted in EIP (2010a) - iron, manganese, silver, and sulfate - do not have 

primary MCLs or other health-based standards. In addition, iron and manganese occur naturally in soils in 

the Piedmont region of the Carolinas, and elevated levels of these parameters are common in on-site 

background wells.

In addition, Duke claims that the concentrations of silver, chromium, and lead cited in EIP (2010a) only 

occurred in the first and/or first few on-site well sampling events.69 After the initial sampling events 

occurred, there has been no exceedance of any health based standards. Similarly, sulfate concentrations 

have remained well within acceptable limits since 1996.

 

Solids, pH, Total Iron, Total Phosphorous, Sulfates, Acute Toxicity, Nitrate/Nitrate Nitrogen, Total Kjeldahl 

Nitrogen*, and Total Nitrogen. * Note: Total Kjeldahl Nitrogen is the sum of organic nitrogen, ammonia (NH3), and 

ammonium (NH4

+

) in the chemical analysis of the wastewater.

64 The Sixth Independent Consultant Inspection Report – Dan River Steam Station, Duke Power Company, Feb. 29, 

2007.

65 Dan River Project (2007).

66 Dan River, ibid.

67 According to EarthJustice’s comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0119) and EIP 

(2010a), a maximum lead level of 0.0392 mg/L was recorded in April 2008, as compared to the MCL of 0.015 

mg/L.

68 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0215.

69 This statement is at odds with the April 2008 exceedances of chromium and silver, cited in EIP (2010a).
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

17

Surface Water: On February 2, 2014, some 50,000 to 82,000 tons of coal ash and up to 27 million gallons 

of water were released from one of the retired Plant’s ponds into the Dan River.70

Evaluation against Proven Damage Criteria71

Resolution: After first contending that the State will not require action until contamination is outside the 

“compliance boundary”, DWQ indicated72 that additional groundwater monitoring wells were installed at 

the Compliance Boundary in February 2011,73 and that DWQ was evaluating the groundwater monitoring 

data to determine if any additional action is required under State Rules 15A NCAC 2L.01006(d).

Based on monitoring data from this site74 showing some constituents exceeded state water standards,75 on 

October 10, 2012, the Southern Environmental Law Center (SELC) filed a complaint with the North 

Carolina Environmental Management Commission on behalf of several citizens’ groups requesting the 

following rulings:

 

70 For the proven damage case that is associated with the February 2014, coal ash slurry spill into the Dan River, see 

a separate write-up in the technical support document (Compendium) on damage cases, Module # PR15.

71 ICF (2010a).

72 Feedback in response to EPA’s Region 4 inquiry following stakeholders’ complaints in the 2010 Charlotte CCR 

Proposed Rule Public Hearing (a January 3, 2012 email from L. DiGaetano, EPA R4, to A. Livnat, EPA/OSWER).

73 According to Complaint and Motion for Injunctive Relief (2013a), however, these CB wells were installed in 

December 2010. According to the power plant’s post-March 2012 Ash Basin Compliance Monitoring Wells Map:

http://portal.ncdenr.org/web/wq/hot-topics/coalashregulation/gwatermonitoring, Table, there are three pairs of 

monitoring wells along the compliance boundary. Two of these were installed in the 2010/2011 timeframe (MW20S and MW-20D; MW-21S and MW-21D); and another pair (MW-22S and MW-22D) was installed in March 

2012. Monitoring well MW-23D is the only one installed outside the compliance boundary (about 1,000 feet to the 

west, and several tenths of feet internally from the plant’s property boundary). 

74 For the period January 2010 to July 2012.

75 Cape Fear River Watch and Others (2012). DENR has documentation of exceedances of groundwater standards 

inside the compliance boundaries of fourteen coal-fired power plants in North Carolina with coal ash impoundments 

permitted prior to 1984, without modern construction techniques and permitting standards. Similarly to the other 13 

facilities, groundwater inside the compliance boundary of the Dan River Steam Electric Plant exceeds standards for 

multiple contaminants.

Criteria Evaluation

Criterion 1: Documented exceedances of primary 

maximum contaminant levels (MCLs) or other 

health-based standards measured in groundwater 

at sufficient distance from the waste management 

unit to indicate that hazardous constituents have 

migrated to the extent that they could cause human 

health concerns

 Onsite groundwater data exceeded primary EPA 

MCL for lead.

 Onsite groundwater data exceeded EPA SMCL for 

iron and sulfate, as well as the state criteria for 

chromium and silver. 

 No offsite groundwater data are available.

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage to 

human health or the environment (e.g., ecological 

damage)

 None

Criterion 3: Where there has been an 

administrative ruling or court decision with an 

explicit finding of specific damage to human health 

or the environment

 None
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

18

a) Operators of coal ash lagoons with NPDES permits first issued on or before December 30, 

1983, must take corrective action pursuant to 15A N.C. Admin. Code 2L .0106(c) when their 

activity results in an increase in the concentration of a substance in excess of groundwater quality 

standards, whether or not groundwater quality standards have been exceeded at or beyond a 

compliance boundary around the CCR ponds;

b) Operators of CCR ponds with NPDES permits first issued on or before December 30, 1983, 

must take immediate action to eliminate sources of contamination that cause a concentration of a 

substance in excess of groundwater quality standards, in advance of their separate obligation to 

propose and implement a corrective action plan for the restoration of groundwater quality 

contaminated by those sources; and

c) Operators of closed and inactive CCR ponds must implement corrective action as unpermitted 

activities pursuant to 15A N.C. Admin. Code 2L .0106(c).

On December 3, 2012, the North Carolina Environmental Management Commission (EMC) upheld state 

regulators' interpretation of groundwater protection requirements for coal ash lagoons: in taking that 

action, the commission rejected a request by environmental groups for an order that would require the 

cleanup of groundwater at 14 coal-fired facilities in North Carolina. The commission found the Division 

of Water Quality correctly interpreted state law and regulations and that pre-1984 lagoons at issue had 

compliance boundaries even though, for corrective action purposes, they were deemed “non-permitted.”76

In response to EMC’s decision, on January 8, 2013, The Southern Environmental Law Center filed the 

complaint in Wake County Superior Court on behalf of several conservation groups77 ‘to protect North 

Carolina communities and groundwater from toxic coal ash contamination at 14 coal-fired power plants 

across the state.’ The lawsuit would require cleanup of groundwater contamination around unlined coal 

ash ponds, including those of Duke’s Power Dan River Plant.78

On August 16, 2013 NC DWQ filed a lawsuit against Duke Energy. The lawsuit indicates that based on 

groundwater monitoring data from January 2011 through July 16, 2013 groundwater exceedances from 

the 2L Groundwater Standard, at or beyond the compliance boundary of the Plant’s ash ponds, include the 

following parameters: antimony, arsenic, boron, iron, manganese, TDS, and sulfate.79 The lawsuit also 

includes an allegation of engineered discharges from toe drains of the Ash Pond which are different 

locations from those authorized under the Plant’s NPDES Permit.80

USWAG claims that this Site does not meet the criteria for a damage case.81

 

76https://essential.bna.com/login/signin?msg=deny&url=http%3A%2F%2Fnews.bna.com%2Fdeln%2Fdisplay%2Fli

nk_res.adp%3Ffedfid%3D28835414%26fname%3Da0d4y8f2r4%26vname%3Ddennotallissues&authenDec=-203

77 The Cape Fear River Watch, Sierra Club, Waterkeeper Alliance, and Western North Carolina Alliance.

78 Southern Environmental Law Center Press Release, January 8, 2013: 

http://www.southernenvironment.org/newsroom/press_releases/groups_in_court_to_stop_groundwater_contaminati

on_from_toxic_coal_ash_waste/

79 Complaint and Motion, ibid, Plaintiff’s Exhibit No. 10. The maximum exceedances (with the 2L Standard for 

reference in parenthesis) were recorded as follows: antimony (1 μg/L): 1.6 μg/L; arsenic (10 μg/L, in MW-21S): 45 

μg/L; boron (700 μg/L): 903 μg/L; iron (300 μg/L): 19,400 μg/L; manganese (50 μg/L): 1,050 μg/L; TDS (500 

mg/L): 770 mg/L, and sulfate (250 mg/L): 350 mg/l. According to DENR’s monitoring well records until May 2014:

http://portal.ncdenr.org/web/wq/hot-topics/coalashregulation/gwatermonitoring, Table, pH exceedances (values as 

low as 5.8-5.9) have been recorded in two wells (MW-20S and MW-23D) throughout most of the 2011-2014 

quaternary monitoring samplings.

80 Complaint and Motion, ibid. The cumulative effect of the effluent discharges on Dan River and its bottom 

sediments has been shown to be rather mild (Ruhl et al., 2012).

81 Comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211): “This case does not meet the criteria for 

a damage case because the allegations are only for on‐site groundwater. The information provided for the Site does 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

19

In a March 12, 2014 letter to North Carolina’s Governor and the State’s Secretary of DENR, Duke 

Energy committed to clean-close the plant’s inactive ash ponds by removing their contents to a lined 

structural landfill or a lined landfill.82

ICF (2010a) Rationale: Potential Damage. < Groundwater exceedances of the primary EPA MCL for 

lead and the SMCLs for iron and sulfate have been found onsite. There are no administrative rulings or 

court decisions associated with the site.>

References

EIP (2010a): In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their 

Environment, Thirty-nine New Damage Cases of Contamination from Improperly Disposed Coal 

Combustion Waste, Case #18, Environmental Integrity Project, EarthJustice and Sierra Club, August 26, 

2010. 

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

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

Appendix C, Case #18. ICF, 10/2010.

Dan River Power Station (2009): Dan River Power Station – Response to Request for Information under 

Section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 

U.S.C.9604(e), March 25, 2009. Accessed Online May 2012.

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

Paul C. Rizzo Associates (2009): CCW Impoundments Inspection Report, Dan River Steam Station, 

Rockingham County, North Carolina, Final Report, Paul C. Rizzo Associates, Inc., September 2009. 

Accessed Online May 2012.

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

Dan River Project (2007): Dan River Project, NCUC Rule R8-61(a) information, 2007. Accessed Online 

May 2012.

http://www.duke-energy.com/pdfs/Dan-River-Preliminary-CPCN-Final-06-29-07.pdf 

Cape Fear River Watch and Others (2012): Request for Declaratory Ruling to the North Carolina 

Environmental Management Commission (“EMC”) for a ruling clarifying application of the EMC’s 

groundwater protection rule to coal ash lagoons1 that contaminate groundwater in excess of water quality 

standards. Cape Fear River Watch, Sierra Club, Waterkeeper Alliance, and Western North Carolina 

Alliance, Petitioners. October 10, 2012. Accessed Online October 2012. 

http://www.southernenvironment.org/uploads/fck/2012%2010-

10%20Pet'r%20Mot%20%20For%20Declaratory%20Ruling%20(Motion%20only).pdf

 

not contain any documented evidence of off‐site groundwater monitoring data or off‐site groundwater monitoring 

data showing exceedances of specified health‐based criteria. Furthermore, the information provided concerning “at 

risk populations” is inappropriate. All “five public drinking water wells within a five‐mile radius of Dan River that 

serve over 60 citizens” are at least two miles from the station and are not downgradient of the station. Likewise, 

although “the private well data available showed that there are over a dozen private suburban residences within two 

miles of the CCW impoundments at Dan River,” there are no “private suburban residences” downgradient of the 

station.”

82 ‘March 12 letter from Duke CEO Lynn Good to Gov. McCrory and Sec. Skvarla’: 

http://portal.ncdenr.org/web/guest/dan-river-documents. According to Duke (2014a), clean closure of the ash ponds 

on the river’s bank would be completed within 24 to 30 months once the destination for the ash would have been 

determined and the necessary permits secured.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

20

Ruhl et al., (2012): The Impact of Coal Combustion Residue Effluent on Water Resources: A North 

Carolina Example. Laura Ruhl, Avner Vengosh, Gary S. Dwyer, Heileen Hsu-Kim, Grace Schwartz,

Autumn Romanski, and S. Daniel Smith. Environmental Science & Technology. Web-published 

September 30, 2012. Accessed Online October 2012.

http://pubs.acs.org/doi/pdfplus/10.1021/es303263x

Complaint and Motion for Injunctive Relief (2013a): State of North Carolina v. Duke Energy Carolinas 

LLC, N.C. Supreme Ct. (Mecklenburg). Docket number unavailable, August 16, 2013. Accessed Online 

August 2013.

http://portal.ncdenr.org/web/wq/hot-topics/duke_energy_aug2013injunctions

Duke Energy (2014): Coal Plant Decommissioning Program, Duke Energy’s website. Accessed Online 

July 2014.

http://www.duke-energy.com/about-us/decommissioning-program.asp

Duke Energy (2014a): Ash Management, Duke Energy’s website. Accessed Online July 2014.

http://www.duke-energy.com/ash-management/

PTb36. H.F. Lee Steam Plant, Progress Energy, Goldsboro, Wayne County, NC

Type: Surface Impoundment.

Background and Description: The H. F. Lee Steam Plant83, 84 had one active unlined ash 

impoundment covering 143 acres and a capacity of 1,980 acre-feet and a cooling lake (Quaker Neck

Lake) adjacent to the plant.85 The impoundment lies less than 250 feet from the plant property boundary 

 

83 Since July 2012, Progress Energy Carolinas became a subsidiary of Duke Energy.

84 The Lee Plant, part of the H.F. Lee Energy Complex, is located on the Neuse River, 3 miles west of Goldsboro, 

N.C. It contains three coal-fired steam units (382 MW) and four combustion turbine units (75 MW). The plant began 

operation in 1951, with additions in 1952, 1962, 1968 and 1971: https://www.progressenergy.com/assets/www/docs/company/plantbrochure.pdf. According to Duke Energy’s Lee website:

http://www.duke-energy.com/power-plants/coal-fired/hf-lee.asp (accessed August 20, 2013), the H.F. Lee Plant was 

retired on Sept. 15, 2012. According to Duke Energy (2014), in December 2013, Duke Energy Progress started 

demolishing the retired Plant by taking down the two smokestacks, and on June 20, 2014, imploded the boilers. 

Once site restoration is completed by mid-2015, Duke will continue to own and steward the land (see also Duke 

Energy 2014a and Duke Energy 2014b). A new, 920-MW natural gas-fueled combined-cycle facility and 

corresponding natural gas pipeline extension began operating in December 2012. According to:

http://www.newsobserver.com/2012/09/14/2342437/progress-energy-to-shut-down-coal.html, coal ash 

impoundments are not covered by North Carolina’s closure policies for lagoons and wastewater ponds.

85 According to Progress Energy Lee Power Station (2009), the impoundment was commissioned 1980. Additional

storage capacity was created within the original pond in 2007 by dredging and restacking existing ash. The unit 

contains fly ash, bottom ash, boiler slag, ash sluice water, other- categorical low volume wastewater, and storm 

water. The volume of material stored in March 2009 was approximately 1,505 acre-feet.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

21

and the Neuse River. There are also four unlined inactive ash ponds (Nos. 1-4).86 No offsite groundwater 

data is available as there are no reported monitoring wells outside the plant property line.87

Both the cooling pond and the ash ponds are located in the transition from the Piedmont to the Coastal 

Plain physiographic provinces. Alluvial or terrace deposits form the surficial soils, attaining a thickness of 

up to 25 feet. The top few feet of the alluvium generally consist of sandy clays and clayey sands, these 

being underlain by fine and coarse sands. Beneath the alluvial or terrace deposits there is a-very stiff 

shaley clay, grading to hard shale with increasing depth. This shale appears to represent weathered 

Piedmont materials. The top of the hard shale varies between elevation 37.0 and -4.0 feet MSL.

88

In June 1977, the DWQ issued to Progress Energy for the H.F. Lee Plant an NPDES Permit (No. 

NC0003417) which was renewed subsequently. The current Permit was re-issued in July 2011 and is 

valid to May 31, 2013. This Permit regulates the Plant’s discharge of Ash Pond Treatment System to the 

Neuse River through Outfall 001.89

Impact and Damage Claims: EIP (2010) indicates that monitoring began in July 2007 and testing 

immediately found groundwater contamination. Onsite groundwater monitoring data exceeded the EPA 

Maximum Contaminant Level (MCL) for lead and arsenic. On-site groundwater data also exceeded North 

Carolina Code 2L Groundwater Standards for boron, manganese, and iron.90 The report also claims that 

onsite down-gradient wells show contamination migrating toward neighboring properties. 

Review of four monitoring well records (2007-2010)91 indicates persistent exceedances of arsenic (MW-1 

and MW-3); iron and manganese (in all four wells); boron (MW-3), and pH (MW-1 and MW-2). 

Additional exceedances (beryllium, chromium, antimony, lead, and barium) are limited to first reading 

 

86 Response to EPA CWA 308 and RCRA 3007 Information Request, Progress Energy Carolinas, Inc., Lee Steam 

Electric Plant, August 2010, provided by EPA/OECA. According to Dewberry and Davis (2011), the inactive ponds 

were constructed in the 1950s and 1960s; the last of the three inactive ponds was taken out of service in 1980, when 

the Active Ash Pond was put into service. Three of the inactive ponds (#s 1-3) were assessed by Dewberry and 

Davis (2011); their maximum areas are 33, 53, and 85 acres, respectively. The inactive ash ponds are mostly 

vegetated and late in 2011 Progress Energy was in the process of determining how to permanently close these ponds.

The cooling lake, commissioned in 1961, has an area of 545 acre. The study claims that no direct waste streams that 

would carry CCR are discharged into the cooling lake.

87 For the location of background and compliance groundwater monitoring wells and groundwater contours, see 

Appendix D: Progress Lee – Site Map with Monitoring Well Locations and Groundwater Elevations as of December 

2010 (produced by Catlin Engineers and Scientists), in Appalachian Voices and Clean Water for North Carolina 

comment to the Steam Electric Industry/CCR Rule joint docket: EPA-HQ-RCRA-2013-0209-0037; for the location 

of the monitoring wells and their sampling data, see: http://portal.ncdenr.org/web/wq/hottopics/coalashregulation/gwatermonitoring Map, Data, respectively. 

88 Dewberry and Davis (ibid, Appendix A, Document 9, virtual page 335).

89 According to Complaint and Motion for Injunctive Relief (2013), a renewed NPDES application is being 

processed by NC DWQ. In addition, the State believes there are non-engineered seeps at the Lee Plant, which are at 

different locations from the outfalls described in the Plant’s NPDES Permit.

90 According to EIP (2010), groundwater monitoring has found contaminant concentrations that exceed state 

groundwater standards for arsenic (0.08-0.44 mg/L, over 8 times the North Carolina groundwater standard of 0.05 

mg/L at the upper limit, and 44 times the primary MCL of 0.010 mg/L); for lead (0.031- 0.047 mg/L, up to 3 times 

the state groundwater standard of 0.015 mg/L, and identical to the primary MCL); for boron (0.49-1.7, over 5 times 

the state groundwater standard of 0.315 mg/L); for manganese (0.81 – 1.91 mg/L, over 38 times the state 

groundwater standard); and iron (3.14 – 22.1 mg/L, over 73 times the state groundwater standard).

91 Response to EPA CWA 308 and RCRA 3007 Information Request Appendix G (Question 11), Progress Energy 

Carolinas, Inc., Lee Steam Electric Plant, August 2010, provided by P. Raack, EPA/OECA to A. Livnat, 

EPA/OSWER.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

22

following well installation. Well MW-2, with consistent exceedances of iron, manganese, and pH, is 

located at the southeastern edge of the compliance boundary zone.

In its comment to the docket, EPRI92 claims that for lead and chromium, high concentrations in the first 

samples collected from new wells were reported as CCR releases, despite the fact that the concentrations 

immediately decreased and remained low for the next several years.93 Progress Energy claimed, as 

recently as November 2011, that “all the identified monitoring results are within the compliance boundary 

and not applicable to determination of a damage case.”94

However, a recent NC DENR’s lawsuit against Duke Energy Progress alleges that based on groundwater 

monitoring data from December 2010 through July 16, 2013 groundwater exceedances from the 2L 

Groundwater Standard at or beyond the compliance boundary of the Plant’s ash ponds include the 

following parameters: arsenic, boron, chromium, iron, and manganese. 95

Evaluation against Proven Damage Criteria96

Resolution: NC DENR claims that the data reported was from wells located inside the State Compliance 

Boundary, which in the case of the Lee Plant is 500 feet beyond the coal ash pond boundary. Although 

corrective action has not been required due to lack of documentation for non-compliance, in 2009, DWQ 

has sent a letter to Progress Energy, directing them to place wells at their Compliance Boundaries to help 

DENR determine if further action will be required.97 Compliance monitoring wells were constructed at 

the CBs of the coal ash ponds in July 2010 and September 2012, and on January 4, 2011, the DWQ 

 

92 EPA-HQ-RCRA-2009-0640-9765.

93 Anomalous samples are common particularly in the first few groundwater samples when a new well is stabilizing.

94 In its comment to the October 2011 NODA’s docket: EPA-HQ-RCRA-2011-0392-0272.

95 Complaint and Motion, ibid, Plaintiff’s Exhibit No. 8. The maximum exceedances (with the 2L Standard for 

reference in parenthesis) were recorded as follows: arsenic (10 μg/L): 665 μg/L; boron (700 μg/L): 4,940 μg/L; and 

chromium (10 μg/L): 50.3 μg/L. In addition, there are also consistent exceedances from the 2L Groundwater 

Standard for iron (up to 33,600 μg/L), manganese (up to 3,080 μg/L), and TDS (one instance, 1,900 mg/L). Due to 

these ‘other exceedances’, “the DWR staff is working with the Defendant to determine if these exceedances are 

naturally occurring or if corrective action will be required.” 

96 ICF (2010).

97 NC DENR’s comment to the docket: EPA-HQ-RCRA-2009-0640-9282.

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels 

(MCLs) or other health-based standards 

measured in groundwater at sufficient 

distance from the waste management unit 

to indicate that hazardous constituents 

have migrated to the extent that they could 

cause human health concerns

 Onsite groundwater data exceeded primary EPA MCLs for 

arsenic and lead.

 Onsite groundwater data exceeded North Carolina 2L 

Groundwater Standards for boron, manganese, and iron.

 No offsite groundwater data are available.

Criterion 2: Where a scientific study 

provides documented evidence of another 

type of damage to human health or the 

environment (e.g., ecological damage)

 None

Criterion 3: Where there has been an 

administrative ruling or court decision 

with an explicit finding of specific damage 

to human health or the environment

 North Caroline DENR has not required any corrective action 

and has no plans to take any regulatory action until 

groundwater contamination reaches the compliance 

boundary.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

23

approved the Plant’s proposed locations of CB wells and monitoring wells.98 Until quite recently, NC 

DENR position has been that it has no plans of taking any regulatory action until groundwater 

contamination reaches the Compliance Boundary.99

Based on monitoring data from this site100 showing some constituents exceeded state water standards,101

on October 10, 2012, the Southern Environmental Law Center (SELC) filed a complaint on behalf of 

several citizens’ groups with the North Carolina Environmental Management Commission requesting the 

following rulings:

a) Operators of coal ash lagoons with NPDES permits first issued on or before December 30, 

1983, must take corrective action pursuant to 15A N.C. Admin. Code 2L .0106(c) when their 

activity results in an increase in the concentration of a substance in excess of groundwater quality 

standards, whether or not groundwater quality standards have been exceeded at or beyond a 

compliance boundary around the CCR ponds;

b) Operators of CCR ponds with NPDES permits first issued on or before December 30, 1983, 

must take immediate action to eliminate sources of contamination that cause a concentration of a 

substance in excess of groundwater quality standards, in advance of their separate obligation to 

propose and implement a corrective action plan for the restoration of groundwater quality 

contaminated by those sources; and

c) Operators of closed and inactive CCR ponds must implement corrective action as unpermitted 

activities pursuant to 15A N.C. Admin. Code 2L .0106(c).

On December 3, 2012, the North Carolina Environmental Management Commission (EMC) upheld state 

regulators' interpretation of groundwater protection requirements for coal ash lagoons: in taking that 

action, the commission rejected a request by environmental groups for an order that would require the 

cleanup of groundwater at 14 coal-fired facilities in North Carolina. The commission found the Division 

of Water Quality correctly interpreted state law and regulations and that pre-1984 lagoons at issue had 

compliance boundaries even though, for corrective action purposes, they were deemed “nonpermitted.”102

In response to EMC’s decision, on January 8, 2013, The Southern Environmental Law Center filed the 

complaint in Wake County Superior Court on behalf of several conservation groups103 ‘to protect North 

Carolina communities and groundwater from toxic coal ash contamination at 14 coal-fired power plants 

 

98 Complaint and Motion for Injunctive Relief (2013). The parameters being monitored are antimony, arsenic, 

barium, boron, cadmium, chromium, chloride, copper, iron, lead, manganese, mercury, nickel, nitrate, pH, selenium, 

sulfate, thallium, TDS, Water Level, and zinc. On June 17, 2011, the DWQ adopted a Policy for Compliance 

Evaluation of Long-term Permitted Facilities with No Prior Groundwater Monitoring Requirements.

99 USWAG, in its comment to the 2001 NODA docket (EPA-HQ-RCRA-2011-0392-0211) claims that this case 

does not meet the criteria for a damage case because the allegations are only for on‐site groundwater. The 

information provided for the site does not contain any documented evidence of off‐site groundwater monitoring data 

or off‐site groundwater monitoring data showing exceedances of specified health‐based criteria.

100 For the period between January 2010 and July 2012.

101 Cape Fear River Watch and Others (2012). DENR has documentation of exceedances of groundwater standards 

inside the Compliance Boundaries of fourteen coal-fired power plants in North Carolina with coal ash 

impoundments permitted prior to 1984, without modern construction techniques and permitting standards. Similarly 

to the other 13 facilities, groundwater inside the Compliance Boundary of the Lee Steam Electric Plant exceeds

standards for multiple contaminants.

102https://essential.bna.com/login/signin?msg=deny&url=http%3A%2F%2Fnews.bna.com%2Fdeln%2Fdisplay%2Fl

ink_res.adp%3Ffedfid%3D28835414%26fname%3Da0d4y8f2r4%26vname%3Ddennotallissues&authenDec=-203

103 The Cape Fear River Watch, Sierra Club, Waterkeeper Alliance, and Western North Carolina Alliance.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

24

across the state.’ The lawsuit would require cleanup of groundwater contamination around unlined coal 

ash ponds, including those of Progress Energy’s Lee Steam Plant. 104

On August 16, 2013, the North Carolina Department of Environment and Natural Resources filed, in the 

Superior Court of Wake County, a lawsuit against Duke’s Sutton Plant; this was one of two lawsuits filed 

by NC DENR against 12 of Duke Energy’s facilities in North Carolina alleging groundwater pollution.105

ICF (2010) Rationale: Potential Damage. < Groundwater exceedances of the primary EPA MCL for 

arsenic and lead have been found on site. There are no administrative rulings or court decisions associated 

with the site.>

References

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

Cases of Contamination from Improperly Disposed Coal Combustion Waste. Case #12. Environmental 

Integrity Project and Earthjustice. February 24, 2010.

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

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

Case #12. ICF, 10/2010, Appendix B.

Cape Fear River Watch and Others (2012): Request for Declaratory Ruling to the North Carolina 

Environmental Management Commission (“EMC”) for a ruling clarifying application of the EMC’s 

groundwater protection rule to coal ash lagoons1 that contaminate groundwater in excess of water quality 

standards. Cape Fear River Watch, Sierra Club, Waterkeeper Alliance, and Western North Carolina 

Alliance, Petitioners. October 10, 2012. Accessed Online October 2012.

http://www.southernenvironment.org/uploads/fck/2012%2010-

10%20Pet'r%20Mot%20%20For%20Declaratory%20Ruling%20(Motion%20only).pdf

Complaint and Motion for Injunctive Relief (2013): State of North Carolina v. Duke Energy Progress 

Inc., N.C. Super. Ct. (Wake), docket number unavailable, August 16, 2013. Accessed Online August 

2013. 

http://portal.ncdenr.org/web/wq/hot-topics/duke_energy_aug2013injunctions

Bloomberg BNA (8/2013): North Carolina Sues Duke Energy for Alleged Contamination From Coal Ash 

at 12 Facilities, Bloomberg BNA Daily Environmental Report, 08/19/2013. Accessed Online August 

2013. 

https://remoteworkplacedr.epa.gov/deln/DELNWB/,DanaInfo=.anfyvDgthHlyx+split_display.adp?fedfid

=35564886&vname=dennotallissues&jd=a0e0u5j3u1&split=0

 

104 Southern Environmental Law Center Press Release, January 8, 2013: 

http://www.southernenvironment.org/newsroom/press_releases/groups_in_court_to_stop_groundwater_contaminati

on_from_toxic_coal_ash_waste/.

105 Bloomberg BNA (8/2013) and Complaint and Motion for Injunctive Relief (2013). According to the lawsuits, 

monitoring at the compliance boundaries of the 12 power plants showed levels of chemical constituents that 

exceeded state groundwater standards. Unpermitted discharges were observed from coal ash ponds at most of the 

facilities as well. DENR seeks a court order to prevent future groundwater pollution and unpermitted discharges, as 

well as an assessment of the contaminants and their sources. The alleged violations, if uncorrected, “pose a serious 

danger to the health, safety, and welfare of the people of the State of North Carolina and serious harm to the water 

resources of the State,” the complaints allege.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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Dewberry & Davis (2011): Coal Combustion Residue Impoundment Round 9 – Final Dam Assessment 

Report, H.F. Lee Steam Electric Plant, Active Ash Pond; Ash Pond 1; Ash Pond 2; Ash Pond 3. Progress 

Energy Carolinas, Inc., Wayne County, North Carolina. Dewberry & Davis, LLC, December 2011. 

Accessed Online January 2014.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/pec_lee_final.pdf

Progress Energy Lee Power Station (2009): Response to an EPA Information Request Letter under 

CERCLA Section 104(e), March (?) 2009. Accessed Online January 2014.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/progress-lee.pdf

Duke Energy (2014): Duke Energy completes implosion at retired H.F. Lee coal plant, Duke Energy’s 

website, June 20, 2014. Accessed Online July 2014.

http://www.duke-energy.com/news/releases/2014062001.asp

Duke Energy (2014a): Coal Plant Decommissioning Program, Duke Energy’s website. Accessed Online 

July 2014.

http://www.duke-energy.com/about-us/decommissioning-program.asp

Duke Energy (2014b): Ash Management, Duke Energy’s website. Accessed Online July 2014.

http://www.duke-energy.com/ash-management/

PTb37. L. V. Sutton Steam Plant, Progress Energy Carolina,106 Wilmington, New Hanover 

County, NC

Type: Surface Impoundments.

Background and Description: The Sutton Steam Plant was built in 1949 on the Cape Fear River’s 

floodplain and along U.S. 421,107 in the Coastal Plain Province. There are two, contiguous impoundment 

adjacent to the plant’s cooling lake108 that cover 135 acres:109 the older (commissioned in 1971) is unlined 

 

106 Also known as Carolina Power & Light Co. Since April 29 2013, Duke Energy Progress Inc.

107 The Sutton Plant consists of three coal-fired steam units. The first unit (113 MW) began commercial operation in 

1954, with additions in 1955 (113 MW) and 1972 (447 MW). The plant also contains three combustion turbine units 

(61 MW) that began operation in 1968 and 1969: https://www.progressenergy.com/assets/www/docs/company/plantbrochure.pdf. Progress Energy has recently announced (June, 2010) the 

conversion of the Sutton Plant to a 640-MW natural gas plant in 2014: Progress Energy Carolinas website (October 

10, 2012). According to Bloomberg BNA (9/2011) the Sutton Steam plant, together with similar units at the H.F. 

Lee and the Cape Fear plants are slated to cease operating at the end of 2013. According to Duke Energy (2013), a 

new, 625 MW L.V. Sutton combined-cycle natural gas plant has begun serving North Carolina and South Carolina 

customers in December 2013, shortly after the plant’s coal-fueled units were decommissioned at the end of 

November: http://www.duke-energy.com/power-plants/coal-fired/sutton.asp.

108 Created in 1972 by the damming of Catfish Creek, Sutton Lake occupies 1,100-acres. The lake is used for the 

disposal site for coal ash wastewater from the power plant (Lemly, 2013) as well as for recreation and fishing 

(largemouth bass, bream and catfish), and has a fishing pier and a boat ramp:

http://www.wwaytv3.com/2012/10/22/enhancements-coming-to-sutton-lake-boating-access. For a map, see:

http://www.ncwildlife.org/Portals/0/Hunting/GameLand_Maps/Coastal/Sutton_Lake.pdf

109 Progress-Sutton (2009).
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

26

and no longer accepts ash sluice waste,

110 and the other (built in 1984) has a clay liner.111, 112 New 

Hanover County operates public water supply wells on property immediately to the south of the plant 

property. 

In June 1977, the DWQ issued to Progress Energy for the L.V. Sutton Plant an NPDES Permit (No. 

NC0001422) which was renewed subsequently. The current Permit was re-issued in December 2011 and 

is valid to the end of 2016. This Permit regulates both the Plant’s discharge of wastewater to the Cape 

Fear River through Outfall 001.113

Prior to October 24, 2012, Progress Energy has conducted voluntary groundwater monitoring in 13 wells 

at the plant (two of which were background), though offsite groundwater data was unavailable. As of 

October 24, 2012, the groundwater monitoring requirements in the Sutton Plant’s NPDES Permit were 

extended to include 17 wells (two of which are background). Whereas some wells prior to the October 

24, 2012 change were located inside the Compliance Boundary, all the post-Oct. 2012 wells are located at 

or beyond the Compliance Boundary.114

The Sutton Steam Plant is underlain by the alluvial deposits of the Cape Fear River. These, in turn, are 

underlain by the Eocene Age Castle Hayne Limestone115 which is eroded through in places to expose the 

underlying, Late Cretaceous-Age Peedee Formation. The Castle Hayne is the most productive regional 

 

110 According to Dewberry & Davis, LLC (2011), the 1971 Pond was vertically expanded in 1983, taken out of 

service in 1985 but reopened in 2001 for temporary use during repairs and maintenance of the 1984 Pond.

111 According to Dewberry & Davis, LLC (2011), the storage capacity corresponding to the top of the embankment 

for the 1971 Pond is 248 acre-feet and the 1984 Pond (referred to in older documents as 1983 Pond) is 1,364 acrefeet. The 1971 Pond contains fly ash, bottom ash, boiler slag, storm water, ash sluice water, coal pile runoff, and 

categorical low volume wastewater; the 1984 Pond contains fly ash, bottom ash, boiler slag, and ash sluice water. 

The 1984 Pond was constructed of sand fill with one-foot thick clay lining the interior face (with permeability of 1 x 

10-7cm/sec). The clay lining was covered with a two-foot thick protective sand fill.

112 Discharge from the 1984 Pond is regulated under NPDES Permit No. NC0001422. See Dewberry & Davis, LLC

(2011), Appendix A: Doc 10 – NPDES.

113 All the post EIP (2010) information is from Complaint and Motion for Injunctive Relief (2013). The effluent 

limitations and monitoring requirements for discharges from Outfall 001 require sampling for the following 

parameters: Flow, Temperature, Total Residual Chlorine, Time of Chlorine Addition, Total Copper, Total Nitrogen, 

Total Phosphorous, Dissolved Oxygen, Acute Toxicity, Total Mercury, pH, Total Suspended Solids, Total 

Selenium, and Total Arsenic.

114 The Sutton plant started groundwater monitoring in 1984 and added new monitoring wells between 1990 and 

2011. The DWQ approved Sutton’s proposed locations of compliance boundary wells and monitoring wells in 

March and October 2011. Between 1990 and 2012, Sutton installed two background wells, nine monitoring wells at 

the compliance boundaries of the ash pond, and additional six monitoring wells outside the compliance boundary:

http://portal.ncdenr.org/web/wq/hot-topics/coalashregulation/gwatermonitoring, Map. The parameters being 

monitored are antimony, arsenic, barium, boron, cadmium, chromium, chloride, copper, iron, lead, manganese, 

mercury, nickel, nitrate, pH, selenium, sulfate, thallium, TDS, Water Level, and zinc. On June 17, 2011, the DWQ 

adopted a Policy for Compliance Evaluation of Long-term Permitted Facilities with No Prior Groundwater 

Monitoring Requirements. According to EIP (2010), at that time the Sutton Plant was managing the only coal ash 

impoundment in North Carolina that had monitoring wells beyond the compliance boundary that are not up-gradient 

or considered background. For the location of the groundwater monitoring wells with respect to the Sutton Ash Pond 

and the mild groundwater mounding around it, see Appendix G: Progress Sutton, Sutton Plant Ash Pond 

Groundwater Monitoring Program (produced April 23, 2009 by ISH, Inc.), in Appalachian Voices and Clean Water 

for North Carolina comment to the Steam Electric Industry/CCR Rule joint docket: EPA-HQ-RCRA-2013-0209-

0037.

115 http://gsabulletin.gsapubs.org/content/91/10/587 and 

http://coedpages.uncc.edu/cstem/summer%20ventures/2010%20Rocks%20and%20Minerals/Soumya's%20Castle%2

0Hayne%20100.pdf.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

27

aquifer in North Carolina. It is separated from the lower portion of the Peedee Formation, another aquifer, 

by a clayey aquiclude comprising the upper portion of the Peedee Formation. 116

Impact and Damage Claims: Groundwater: According to EIP (2010), annual groundwater monitoring 

began in December 2006 and immediately detected exceedances of groundwater standards. 

Contamination of onsite groundwater comprises arsenic above the primary EPA Maximum Contaminant 

Level (MCL) and boron, manganese, and iron above the North Carolina 2L Groundwater Standards.117

EIP (2010) also notes that groundwater contamination has spread over 500 feet from the impoundment 

and outside of the state-designated Compliance Boundary and claims this indicates that the contamination 

is moving offsite. However, the North Carolina Department of Environment and Natural Resources (NC 

DENR) claims118 that in 2006, Progress Energy noted exceedances of several constituents and submitted a

site assessment plan to the DWQ’s Regional Office, and that while these reported exceedances were from 

wells located outside the State Compliance Boundary, still groundwater contamination is just approaching 

property lines. As of 2011, this issue was under review to determine what additional action is required in 

accordance with State Rules15A NCAC 2L.0106(d).119

A recent NC DENR’s lawsuit against Duke Energy Progress indicates that based on groundwater 

monitoring data from March 2010 through July 16, 2013 groundwater exceedances from the 2L 

Groundwater Standard at or beyond the compliance boundary of the Plant’s ash ponds include the 

following parameters:120 thallium, antimony, boron, selenium, TDS, sulfate, manganese, iron, lead, 

arsenic, and pH.121 The violations of 2L Groundwater Standards have been measured in eight compliance 

wells which are located up-gradient of two water supply wells (PW#3 and PW#4) serving the New 

Hanover Water System.122

 

116 According to North Carolina Aquifers (2012), wells in the Castle Hayne aquifer typically yield 200-500 gallons 

per minute. The Peedee aquifer is composed of fine to medium sand. Wells of the Peedee aquifer typically yield up 

to 200 gallons per minute. For additional information on North Carolina aquifers, see Jeff C. Lautier (2009).

117 Arsenic measured in groundwater in March 2007 was x29 the MCL. In March of 2005 and 2006, the arsenic 

levels were >x10 and >x12 the MCL, respectively. Boron in groundwater (2.9 and 2.69 mg/L in March of 2005 and 

2006, respectively) was almost x3 the EPA HAL of 1.0 mg/L. In 2007 and 2006, iron was >x10 the SMCL, and >x 

4.5 the standard in 2005 (4.6 mg/L). Finally, in 2007, manganese (0.441 mg/L) was >x 8 the SMCL.

118 NC DENR comment to the docket: EPA-HQ-RCRA-2009-0640-9282.

119 In its comment to the docket: EPA-HQ-RCRA-2006-0796-0460, Progress Energy claims that the Sutton site 

involves monitoring of groundwater that is within company property boundaries, which are far from drinking water 

supply wells. USWAG, in its comment to the 2011 NODA docket (EPA-HQ-RCRA- 2011-0392-0211), and 

Progress Energy’s, in its comment to the October 2011 NODA’s docket (EPA-HQ-RCRA-2011-0392-0272) claim 

that the Sutton Plant has never received a NOV from NC DENR concerning groundwater concentrations in 

monitoring wells at the ash ponds. There have been no arsenic exceedances of the North Carolina 2L standard in 

groundwater samples outside of the Compliance Boundary of the two ash ponds. North Carolina groundwater 

standards do not apply for monitoring wells inside of the Compliance Boundary of a waste management unit.

120 Complaint and Motion for Injunctive Relief (2013), Plaintiff’s Exhibit No. 11.

121 The maximum exceedances (with the 2L Standard for reference in parenthesis) were recorded as follows: 

thallium (0.2 μg/L): 0.62 μg/L; antimony (1 μg/L): 1.1 μg/L; boron (700 μg/L): 2,580 μg/L; selenium (20 μg/L): 

37.1 μg/L; TDS (500 mg/L): 579 mg/L; sulfate (250 mg/L): 814 mg/L (first sampling event in MW-21C and a single 

exceedance throughout); manganese (50 μg/L): 1,360 μg/L; iron (300 μg/L): 7,680 μg/L; lead (15 μg/L): 17.3 μg/L; 

arsenic (10 μg/L): 15 μg/L, and pH (6.5-8.5): 4.5-6.47. However, according to http://portal.ncdenr.org/web/wq/hottopics/coalashregulation/gwatermonitoring, Data (monitoring well data spanning the period of March 2010 to March 

2014), even higher exceedances are on record, including: arsenic values of up to 267 μg/L, in four wells; boron as 

high as 2,790 μg/L(in MW2); iron, as high as 8,050 μg/L (in MW2); manganese – as high as 2,360 μg/L (in MW24C); selenium, as high as 61.7 μg/L (in MW-27B); and TDS, as high as 1,040 mg/L (in MW18).

122 These two water supply wells are located approximately 2,200 feet away from the compliance boundary and 

2,700 feet away from the edge of the ash ponds. 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

28

Evaluation against Proven Damage Criteria123

Surface water and ecologic damage: On September 28, 2010, a portion of one of Sutton Steam Plant's 

coal ash ponds failed under persistent (20-inch) rainfall. The breach, estimated at 8 feet deep and about 22 

feet wide, carved out the top of the dam and sent clay and dry ash cascading down to the toe of the raised 

embankment, releasing an estimated 10 cubic yards of coal ash that spilled over an acre.124, 125

Concentrations of arsenic, copper, and selenium in Sutton Lake’s sediments continued to be elevated

above background concentrations during 2012.126 A recent study127 established a nexus between the 

elevated levels of selenium in Lake Sutton and its bottom sediments, elevated selenium in the lake’s 

fishes and the impact on the fish community’s health.128 Bluegill and other Lepomis species group 

 

123 ICF (2010).

124 StarNews Online (2010).

125 For the NC DENR-approved repair plans of the eroded 1984 Pond dike, see Dewberry & Davis, LLC (2011), 

Appendix A, Doc 16: Final Approval to Impound, and Doc 14: Repair Completion Package.

126 Duke Energy Progress (2013). The elevated copper levels (7.6 μg/liter at Station 8A surface water, slightly above 

the North Carolina copper water quality action level of 7 μg/liter) could be possibly due to the corrosion effect that 

was exerted by the Cape Fear River’s intake water on the Sutton plant’s piping by its elevated chloride levels 

resulting from the River’s tide-driven upstream saltwater intrusion and by the shallow lake’s evaporative losses. 

Since the intake water quality was augmented by intake piping from a more distal segment of the river, another 

possible cause is the increased use of copper-based herbicides in the lake to control filamentous algae growth. In 

2012, all of the mean copper concentrations in sediments (between 475 ± 8.8 μg/g and 619 ± 21 μg/g) were well

above what is considered to be background concentrations (20-90 μg/g dry weight).

127 Lemly (2013), summarized in E&Enews (2013).

128 Whereas average waterborne concentrations of selenium measured in Lake Sutton - 3.5, 3.1 and 2.7 μg/L in 

2009, 2010, and 2011, respectively, well below the EPA national and North Carolina state criterion of 5 μg/L –

markedly elevated selenium levels were found in fish tissues each year, far exceeding toxic thresholds. Historic 

(since 1987) and recent concentrations of selenium in whole-body samples of centrarchid fishes (bluegill and bass 

Micropterus sp.) ranged between 7.5 and 38.5 μg/g dry weight (with an average of 27 μg/g dw for 11 readings), 

between two and almost ten-times higher than the toxic whole body threshold of 4 μg/g dw. Duke Energy Progress 

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels (MCLs) 

or other health-based standards measured in 

groundwater at sufficient distance from the 

waste management unit to indicate that 

hazardous constituents have migrated to the 

extent that they could cause human health 

concerns

 Onsite groundwater data exceeded primary EPA MCLs 

for arsenic.

 Onsite groundwater data exceeded North Carolina 2L 

Groundwater Standards for iron, manganese, and boron.

 No offsite groundwater data are available.

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage 

to human health or the environment (e.g., 

ecological damage)

 None

Criterion 3: Where there has been an 

administrative ruling or court decision with an 

explicit finding of specific damage to human 

health or the environment

 Because the contamination spread beyond the 500 foot 

Compliance Boundary, the North Carolina Department 

of Environment and Natural Resources (DENR) issued 

a Notice of Violation (NOV) and requested corrective 

action. 

 NPDES permit in place and a closure plan is being 

evaluated. 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

29

members exhibited close to a 29 percent rate of skeletal deformities, particularly of the spine and 

craniofacial region. Such symptoms are consistent with elevated selenium and associated toxic responses 

in the lake’s habitat.129 Based on North Carolina’s Department of Inland Fisheries’ and Progress Energy’s 

monitoring data, the population of “catchable” size bass has declined by over 50 percent since 2008.130

Given the magnitude of sediment-associated selenium contamination currently in Lake Sutton (21-28 

μg/g reported in 2011 samples, about 10-14 times of the toxic threshold), there is a large repository of 

selenium that is biologically available to enter the benthic food chain and thereby, the diet of fish. Even 

under the scenario of dilution/reduction/termination of CCR wastewater flow into the lake due to the 

power plant’s retirement, the biologically available reservoir of selenium would not dissipate below fish 

toxicity threshold for another 46 years.131

Resolution: The Sutton site has been the subject of several EPA investigations under Superfund 

(CERCLIS # NCD000830646), including a Preliminary Assessment of the site (March 1985), an initial 

site inspection (September 1992), and an expanded site inspection (September 2000.) The site has been 

listed on the North Carolina state Superfund list of inactive hazardous waste sites since 1988.132 NC 

DENR stated that in 1987, a Notice of Non-Compliance was issued concerning chloride and TDS 

contamination.133

NC DENR submitted that in 2004, one of the wells on the Review Boundary (RB) showed high levels of 

arsenic. Following a meeting with NC DENR, Progress Energy conducted a study, and as a result, added 

one well at the Compliance Boundary, one at the RB, and one inside the RB near the impoundment. 

These wells were later added to the permit in 2006. In January 2004, Progress Energy entered into a 

voluntary consent agreement with the State to perform work at the site, but this agreement was terminated 

by the company late in 2007.134

In 2006, Progress Energy selected five of their existing wells (one at the Compliance Boundary, three at 

the RB, a background well at the side gradient, and three wells of those required in the 2006 permit) for 

semi-annual sampling (Fall and Spring) -- for an extended number of parameters. After four sampling 

events, the wells showed exceedances of boron and manganese. Following a consultant’s study in 2008, 

 

(2013) claims, however, that muscle tissue (i.e., edible flesh) values measured in 2012 in bluegill, largemouth bass, 

and flathead catfish, 11-14 μg/g dw, while considered elevated compared to a background concentrations of < 1 to 4 

μg/g, were well below the North Carolina human health consumption advisory for selenium (50 μg/g dw).

129 From the rate of deformation, Lemly (ibid) estimated that the total selenium impact on the bluegill/Lepomis 

group in Lake Sutton is currently in the range of 20-30 percent annual total population mortality. The estimated 

monetized cost of selenium poisoning on this fish group in Lake Sutton is $5.63 million in 2013.

130 Studies of other selenium-polluted power plant lakes in North Carolina show that largemouth bass are very 

susceptible to selenium poisoning: they are of the first species to be detrimentally affected due to selenium-induced 

reproductive impairment. While Lemly (ibid) claims that this conclusion is supported by the failure of multiple 

sampling efforts in his current study to produce a single bass less than 6 cm. long, Duke Energy Progress (2013, 

Appendix 11) reports that the 2012 monitoring has yielded some bass that are 5-6 cm. long. 

131 Accounting for natural sedimentation rates combined with microbial volatilization and biological removal into 

aquatic macroorganisms that typically account for about a 1-2 percent attenuation of sediment selenium 

concentrations per year.

132 EarthJustice comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0446.3: 

http://www.environmentalintegrity.org/pdf/newsreports/2009-01-07-CASE.pdf

133 NC DENR comment to the docket: EPA-HQ-RCRA-2009-0640-9282.

134 Apparently following a "Site Reassessment Report" produced in June 2006 by NC DENR’s Division of Waste 

Management, which recommended that the site's status be amended to "No Further Remedial Action Planned".
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

30

Progress Energy added additional monitoring wells. NC DENR issued Notice of Violation and requested 

corrective action. Progress Energy is performing corrective action work voluntarily.135

Based on monitoring data from this site136 showing some constituents exceeded state water standards,137

on October 10, 2012, the Southern Environmental Law Center (SELC) filed a complaint on behalf of 

several citizens’ groups with the North Carolina Environmental Management Commission requesting the 

following rulings:

a) Operators of coal ash lagoons with NPDES permits first issued on or before December 30, 

1983, must take corrective action pursuant to 15A N.C. Admin. Code 2L .0106(c) when their 

activity results in an increase in the concentration of a substance in excess of groundwater quality 

standards, whether or not groundwater quality standards have been exceeded at or beyond a 

compliance boundary around the CCR ponds;

b) Operators of CCR ponds with NPDES permits first issued on or before December 30, 1983, 

must take immediate action to eliminate sources of contamination that cause a concentration of a 

substance in excess of groundwater quality standards, in advance of their separate obligation to 

propose and implement a corrective action plan for the restoration of groundwater quality 

contaminated by those sources; and

c) Operators of closed and inactive CCR ponds must implement corrective action as unpermitted 

activities pursuant to 15A N.C. Admin. Code 2L .0106(c).

On December 3, 2012, the North Carolina Environmental Management Commission (EMC) upheld state 

regulators' interpretation of groundwater protection requirements for coal ash lagoons: in taking that 

action, the Commission rejected a request by environmental groups for an order that would require the 

cleanup of groundwater at 14 coal-fired facilities in North Carolina. The Commission found the Division 

of Water Quality correctly interpreted state law and regulations and that pre-1984 lagoons at issue had 

compliance boundaries even though, for corrective action purposes, they were deemed “nonpermitted.”138

In response to EMC’s decision, on January 8, 2013, SELC filed the complaint in Wake County Superior 

Court on behalf of several conservation groups139 ‘to protect North Carolina communities and 

groundwater from toxic coal ash contamination at 14 coal-fired power plants across the state.’ The 

lawsuit would require cleanup of groundwater contamination around unlined coal ash ponds, including 

 

135 According to NC DENR feedback, in response to EPA’s Region 4 inquiry following stakeholders’ complaints in 

the 2010 Charlotte Public Hearing (January 3, 2012 email from L. DiGaetano, EPA R4, to A. Livnat, 

EPA/OSWER), NC DENR is actively addressing the facility. An initial groundwater assessment was completed and 

findings submitted to DWQ in February 2011. Findings from sampling and testing new monitoring wells from the 

Phase II investigation would be used to determine course of corrective action.

136 For the period January 2010 to July 2012.

137 Cape Fear River Watch and Others (2012). NC DENR has documentation of exceedances of groundwater

standards inside the compliance boundaries of fourteen coal-fired power plants in North Carolina with coal ash 

impoundments permitted prior to 1984, without modern construction techniques and permitting standards. Similarly 

to the other 13 facilities, groundwater inside the compliance boundary of the Sutton Steam Electric Plant exceeds

standards for multiple contaminants. In particular, monitoring well MW-2 has documented arsenic at levels as much 

as 26 times the groundwater standard. NC DENR has not required corrective action for arsenic, however, because 

the well is inside the Compliance Boundary for the plant.

138https://essential.bna.com/login/signin?msg=deny&url=http%3A%2F%2Fnews.bna.com%2Fdeln%2Fdisplay%2Fl

ink_res.adp%3Ffedfid%3D28835414%26fname%3Da0d4y8f2r4%26vname%3Ddennotallissues&authenDec=-203

139 The Cape Fear River Watch, Sierra Club, Waterkeeper Alliance, and Western North Carolina Alliance.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

31

those of Progress Energy’s Sutton Plant.140 On June 19, 2013, environmental advocates announced that 

they plan to sue Duke Energy Progress Inc., alleging water pollution from coal ash ponds at the L.V. 

Sutton power plant.141, 142, 143

On August 16, 2013, the North Carolina Department of Environment and Natural Resources filed, in the 

Superior Court of Wake County, a lawsuit against Duke’s Sutton Plant; this was one of two lawsuits filed 

by NC DENR against 12 of Duke Energy’s facilities in North Carolina alleging groundwater pollution.144

According to the injunction, NC “DWR staff is working with the Defendant to determine if these 

exceedances145 are naturally occurring or if corrective action will be required.”

Duke Energy confirmed in October 2013, that tests from groundwater wells at the power plant showed 

that contaminated groundwater was moving toward Flemington, about a half-mile away, threatening the 

private wells of about 400 people in a Wilmington-area community. Duke Energy has agreed to pay most 

of a $2.25 million project to run public water lines to Flemington. Duke Energy also requested that the 

Cape Fear public water utility authority never make use of 17 square miles of groundwater near the power 

plant’s ash basin.146

 

140 Southern Environmental Law Center Press Release, January 8, 2013: 

http://www.southernenvironment.org/newsroom/press_releases/groups_in_court_to_stop_groundwater_contaminati

on_from_toxic_coal_ash_waste/

141 According to Bloomberg BNA, Groups Notify Duke Energy Progress Again Of Intent to Sue Over Coal Ash 

Contamination: https://outlook.office365.com/owa/?exsvurl=1&realm=office365.com&wa=wsignin1.0, in a letter to 

the utility and regulatory agencies, the Southern Environmental Law Center (SELC) along with Cape Fear River 

Watch, the Sierra Club, and the Waterkeeper Alliance said contamination from two unlined coal ash ponds on the 

site are contaminating Sutton Lake and threatening the drinking water supply of a nearby community. Unless the 

utility enters into a binding agreement within 60 days to stop the alleged violations, SELC said it will file a lawsuit. 

SELC claims that the leaking ash ponds - unpermitted discharges in violation of the Clean Water Act - are 

contaminating the lake with high concentrations of selenium and other substances. Excessive concentrations of 

arsenic, manganese, iron, and other pollutants have been found by on-site groundwater monitoring wells, and 

drinking water for a neighboring community is threatened, according to the groups. Duke Energy responded by 

stating that they believe to have diligently complied with all the plant’s water discharge permits, and that the utility 

has been monitoring the groundwater at the facility since 1990, and has have no indications that operations at the 

plant have had any adverse impact on neighboring drinking water supplies.

142 SELC (2013): http://op.bna.com/env.nsf/id/maln-98tr46/$File/andrew.pdf

143 The lawsuit was filed on September 12, 2013. In a response, Duke Energy said its facilities are in compliance 

with regulations and that tests show no threat to public health to anyone supplied by well water near the plant. The 

company also pointed out that it would retire the coal-fired plant later in 2013 and replace it with a new 625-

megawatt natural gas plant: http://www.wwaytv3.com/2013/09/12/environmental-groups-file-suit-about-suttonplant-pollution. On June 9, 2014, a federal judge decided that the lawsuit can move forward, because the state's 

enforcement action dealt with groundwater violations, but Sutton Lake is a public waterway and subject to the 

provisions of the federal law. The ruling allows environmental groups to request internal Duke Energy documents: 

http://www.wwaytv3.com/2014/06/10/judge-coal-ash-lawsuit-nc-can-move-forward

144 Bloomberg BNA (8/2013) and Complaint and Motion for Injunctive Relief (2013). According to the lawsuits, 

monitoring at the compliance boundaries of the 12 power plants showed levels of chemical constituents that 

exceeded state groundwater standards. Unpermitted discharges were observed from coal ash ponds at most of the 

facilities as well. DENR seeks a court order to prevent future groundwater pollution and unpermitted discharges, as 

well as an assessment of the contaminants and their sources. The alleged violations, if uncorrected, “pose a serious 

danger to the health, safety, and welfare of the people of the State of North Carolina and serious harm to the water 

resources of the State,” the complaints allege.

145 This statement is triggered by some 2L exceedances noted in ‘background wells’: manganese (in wells MW-4B 

and MW-5C), iron (in well MW-4B), and pH (in well MW-5C).

146 Winston-Salem Journal (2013) and SELC (2013). According to Huffington Post (2014), the plume has been 

moving closer to the homes and wells at a rate of as much as 340 feet per year.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

32

Following the January 2014 ash spill from a Dan River Plant’s inactive ash pond, in a March 12, 2014 

letter to North Carolina’s Governor and the State’s Secretary of DENR, Duke Energy committed to 

accelerate planning for closure, including an evaluation of clean-closing of Sutton plant’s no-longer active 

ash ponds, including their dewatering within 18-24 months.147 In June 2014, the North Carolina Senate 

has initiated legislation to close all coal ash ponds in the state, including a clean closing of the Sutton 

Plant site.148

In March 2014, The NC DENR found that the Sutton Steam Plant is one of six Duke Energy’s plants that 

had not applied for or obtained federally-mandated stormwater permits.149

ICF (2010) Rationale: Potential Damage. <Groundwater exceedances of the primary EPA MCL for 

arsenic have been found beyond the compliance boundary, but still on site. The NC DENR issued a NOV 

and requested corrective action for MCL exceedances beyond the compliance boundary; however 

Progress Energy is performing the corrective action work voluntarily.>

References

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

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #11. Environmental 

Integrity Project and Earthjustice. February 24, 2010.

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

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

Case #11. ICF, 10/2010, Appendix B.

Progress-Sutton (2009): Information Request Responses from Electric Utilities: Responses from Electric 

Utilities to EPA Information Request Letter. Accessed Online April 2012. 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/progress-sutton.pdf

Cape Fear River Watch and Others (2012): Request for Declaratory Ruling to the North Carolina 

Environmental Management Commission (“EMC”) for a ruling clarifying application of the EMC’s 

groundwater protection rule to coal ash lagoons1 that contaminate groundwater in excess of water quality 

standards. Cape Fear River Watch, Sierra Club, Waterkeeper Alliance, and Western North Carolina 

Alliance, Petitioners. October 10, 2012. Accessed Online October 2012.

http://www.southernenvironment.org/uploads/fck/2012%2010-

10%20Pet'r%20Mot%20%20For%20Declaratory%20Ruling%20(Motion%20only).pdf

StarNews Online (2010): Deluge takes toll on roads, ash pond, sewers. StarNews Online, September 28, 

2010.Accessed Online October 2012.

http://www.starnewsonline.com/article/20100928/ARTICLES/100929663/1177?p=all&tc=pgall

 

147 Attachment to an April 30, 2014 email from Frank Ney, EPA Region 4, to Alexander Livnat, EPA/OSWER, and 

Duke Energy (2014, 2014a). In mid-2014, Duke Energy stated that it will submit a conceptual ash basin closure plan 

to the NC DENR within six months.

148 http://www.wwaytv3.com/2014/06/16/senate-bill-pushes-to-close-nc-coal-ash-ponds. A proposed destination for 

the removed CCRs is the New Hanover County Landfill, three miles away from Sutton power plant. The landfill 

would be double lined and with leachate collection system: http://www.wwaytv3.com/2014/04/22/only-3-suttonplant-coal-ash-could-head-to-new-hanover-co-landfill

149 http://www.wwaytv3.com/2014/03/03/duke-energy-notified-of-violations-more-plants-including-new-hanoverco-facility. The other plants are Cape Fear, Belews Creek, Cliffside, Lee, and the Roxboro. 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

33

Dewberry & Davis, LLC (2011): Coal Combustion Residue Impoundment Round 9 - Dam Assessment 

Report: L.V. Sutton Steam Electric Plant Ash Ponds, Progress Energy Carolinas, Inc.

Wilmington, North Carolina, Final report, Dewberry & Davis, LLC, December 2011. Accessed Online 

November 2012.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/pe-lv_sutton-final.pdf

Bloomberg BNA (9/2011): Progress Energy Plant Closures to Be Accelerated Due to Fuel Costs, 

Bloomberg BNA Daily Environmental Report, 9/28/2011. Accessed Online August 2013. 

https://remoteworkplacedr.epa.gov/deln/DELNWB/,DanaInfo=.anfyvDgthHlyx+split_display.adp?fedfid

=23007531&vname=dennotallissues&jd=a0c9e2j3r3&split=0

Bloomberg BNA (8/2013): North Carolina Sues Duke Energy for Alleged Contamination From Coal Ash 

at 12 Facilities, Bloomberg BNA Daily Environmental Report, 08/19/2013. Accessed Online August 

2013. 

https://remoteworkplacedr.epa.gov/deln/DELNWB/,DanaInfo=.anfyvDgthHlyx+split_display.adp?fedfid

=35564886&vname=dennotallissues&jd=a0e0u5j3u1&split=0

North Carolina Aquifers (2012): A North Carolina Division of Water Resources, DENR web site, 

November 5, 2012. Accessed Online November 2012.

http://www.ncwater.org/Education_and_Technical_Assistance/Ground_Water/AquiferCharacteristics/

Jeff C. Lautier (2009): Hydrogeologic Framework and Ground Water Conditions in the North Carolina 

East Central Coastal Plain. North Carolina Department of Environment and Natural Resources, Division 

of Water Resources, August, 2009. Accessed Online November 2012.

http://www.ncwater.org/Reports_and_Publications/GWMS_Reports/ECCP_Framework/1ECCPFramebo

dy.pdf

SELC (2013): Notice of Intent to Sue, FWPCA Section 505-33 U.S.C. §1365: 60-Days Violation by 

Duke Energy Progress, Inc. – L.V. Sutton Steam Electric Plant, NPDES Permit # NC0001365, Southern 

Environmental Law Center, June 19, 2013. Accessed Online June 2013.

http://op.bna.com/env.nsf/id/maln-98tr46/$File/andrew.pdf

Complaint and Motion for Injunctive Relief (2013): State of North Carolina v. Duke Energy Progress 

Inc., N.C. Super. Ct. (Wake), docket number unavailable, August 16, 2013. Accessed Online August 

2013. 

http://portal.ncdenr.org/c/document_library/get_file?uuid=2d56a4ca-f19a-44e8-8372-

06a2a12d8f66&groupId=38364

Lemly (2013): Biological Assessment to Determine Impacts of Selenium Pollution From Coal Ash 

Wastewater Discharges on Fish Populations in Lake Sutton, NC. Prepared by Dennis Lemly for Southern 

Environmental Law Center Chapel Hill Office, NC, November 5, 2013. Accessed Online December 2013.

http://www.eenews.net/assets/2013/12/03/document_pm_02.pdf

Duke Energy Progress (2013): L. V. Sutton Electric Plant 2012 Environmental Monitoring Report, 

Water and Natural Resources, Duke Energy Progress, Inc., November 2013. Accessed Online December 

2013.

http://www.eenews.net/assets/2013/12/03/document_pm_01.pdf

E&Enews (2013): Report blames Duke Energy dumps for killing 900K fish every year, December 3, 

2013. Accessed Online December 2013.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

34

http://www.eenews.net/eenewspm/2013/12/03/stories/1059991229

Duke Energy (2013): Duke Energy Progress' new Sutton natural gas plant in Wilmington, N.C., begins 

commercial operation. Duke energy website, December 11, 2013. Accessed Online July 2014. 

http://www.duke-energy.com/news/releases/2013121101.asp

Winston-Salem Journal (2013): Contamination lawsuits push Duke Energy to address pollution, WinstonSalem Journal, November 2, 2013. Accessed Online July 2014.

http://www.journalnow.com/news/local/article_9e812c80-4423-11e3-b39a-0019bb30f31a.html

Huffington Post (2014): After Coal Ash Spill, Communities Worry about Threat to Health, Water Supply. 

Huffington Post Green, posted 2/22/2014, updated 4/24/2014. Accessed Online July 2014.

http://www.huffingtonpost.com/2014/02/22/coal-ash-spill_n_4837998.html

SELC (2013): Duke Coal Ash Pollution Ruining Public Drinking Water Resource in Wilmington, NC, 

Southern Environmental Law Center Press Release, October 7, 2013. Accessed Online July 2014.

http://www.southernenvironment.org/news-and-press/press-releases/duke-coal-ash-pollution-ruiningpublic-drinking-water-resource-in-wilmingto

Duke Energy (2014): Coal Plant Decommissioning Program, Duke Energy’s website. Accessed Online 

July 2014.

http://www.duke-energy.com/about-us/decommissioning-program.asp

Duke Energy (2014a): Ash Management, Duke Energy’s website. Accessed Online July 2014.

http://www.duke-energy.com/ash-management/

PTb38. Leland Olds Station, Basin Electric Power Cooperative, Stanton, Mercer County, 

ND

Type: Surface Impoundments (and a Mine Landfill).

Background and Description: Leland Olds Station (LOS) is located four miles southeast of Stanton, 

North Dakota, on the south shore of the Missouri River.150 LOS has disposed of coal combustion residual 

 

150 LOS is a base-load power provider with one pulverized wall-fired boiler and one cyclone boiler. LOS has two 

units totaling 656 MW (Unit One, 216 MW, on line since 1966; Unit Two, 440 MW, on line since 1975). LOS burns 

10,000-12,000 tons/day of coal producing 8-9 percent CCR (50 percent fly ash and 50 percent bottom ash). LOS is 

primarily lignite-fueled, consuming annually more than 3 million tons of lignite supplied, via rail, from the nearby 

Freedom Mine. Located 8 miles northwest of Beulah, Freedom Mine is the largest lignite mine in the country [for 

additional information, see Tillotson (2002)]. LOS uses also some sub-bituminous coal. For information on boiler 

technology and performance, see Basin Electric Power Cooperative Bart Study (2006). 

According to EPA Minefill Site Visit (2002), in 1994, LOS converted from a wet to a dry handling system 

for fly ash. As a result, LOS went from a slurry conveyance and disposal system, to handling the bottom- and fly ash 

separately. Bottom ash, classified as inert waste (pH 11.0), is slurried into an unlined settling pond next to the plant. 

LOS sells 60,000 tons of the bottom ash for sand blasting under the brand name Black Beauty® [Buckley and 

Pflughoeft-Hassett (2008)]. The fly ash (with a small amount of water added for dust control) is collected into a silo 

for dry disposal at the abandoned Glenharold Mine.

In 2002, there were ten groundwater monitoring wells: three up-gradient, seven down-gradient, and two 

were dry. The site’s groundwater is not usable, with a total dissolved solids concentration (TDS) of 4,000 mg/L. In 

comparison, leachate from the landfill has a TDS of 2,000 mg/L.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

35

(CCR) from Basin Electric Power Cooperative (BEPC) in five ash ponds located southeast of the power 

Plant on the Missouri River’s floodplain. The ponds date back to 1966, when the first pond (Pond 1) was 

commissioned.151 Ponds 2 and 3 followed in 1975, Pond 4 - in 1985, and Pond 5 - at an unspecified date. 

Pond 4 and Pond 5 were decommissioned and capped between 1992 and 1996. Prior to closure, fly ash 

from Ponds 1 and 2 was moved to Ponds 4 and 5.152 The CCR impoundments are permitted to dispose of 

bottom ash.153 The total ponds’ permit area is 364.6 acres with a 2.7 million cubic yard capacity.

In 1994, at the encouragement of State regulators, LOS converted from a wet to a dry handling system for 

fly ash. As a result, LOS went from a slurry system, in which the facility combined water, fly ash, and 

bottom ash and disposed the mixture into nearby ash ponds (located in the Missouri River’s alluvial 

plain), to handling the two types of ash separately. The bottom ash, which is classified as inert waste (pH 

is 11.0), is slurried into an unlined settling pond next to the plant, where it is stored for marketing. The fly 

ash (water-conditioned for dust control) is collected into a silo for dry disposal at a former mine.154 The 

site holds two permits: SP-038 for the onsite disposal of 210,000 tons bottom ash in Ponds 1-3,155 and SP143 for offsite disposal of 150,000 tons/year fly ash, at the Glenharold lignite strip mine four miles from 

the plant.156, 157 LOS is installing a wet FGD system which will require the landfill to double in size.158

Groundwater has been evaluated onsite; however, no offsite assessment or monitoring has been required. 

According to EIP (2010a), the LOS is located on lower terraces of the Missouri River’s flood plain. The 

Missouri River is within 250 feet of Ponds 3 and 5. These terraces consist mostly of clay and silt. 

 

151 According to Basin Electric Power Cooperative (2009), its coal ash ponds are “not lined with engineered clay or 

synthetic materials” and “documentation regarding the design and construction” of the ponds was “unavailable” due 

to the age of the ponds. This is corroborated by GEI Consultants’ (2011) Coal Combustion Dam Inspection 

Checklist forms, stating “N/A” under ‘liner’ for each of the three active ash ponds. EIP’s (2010a) statement “clay 

liners have been used under all of the ponds (Holzwarth, 2009)”, presumably citing Basin Electric Power Company 

(2009), could not be corroborated in the original document. Therefore, all other sources’ claims that the ponds are 

actually clay-lined, claims that are presumably based either on Holzwarth (2009) [e.g., EIP (2010a) and 

Earthjustice’s comment to the docket (EPA-HQ-RCRA-2009-0640-6314)] or on EIP’s (2010a) citation [USWAG’s 

comment to the docket (EPA-HQ-RCRA-2011-0392-0211)] are untenable.

152 According to GEI (2011), the primary use of Ash Pond #1 was the holding and recovery of bottom ash received 

from generating Unit 1 and Unit 2. Following its decommissioning, Ash Pond #1 has been used for the collection 

and drying of sluiced bottom ash for saleable purposes. Ash Pond #1 is near capacity and the majority of the pond 

will be reclaimed in the near future. Ash Pond #3 is a secondary settling basin, used to store decant water from Ash 

Pond #2. Water is piped back to the plant from Ash Pond #3. 

153 According to Basin Electric Power Cooperative (2009), the bottom ash fraction amounts to 90 percent of the 

waste stream going out to the ash ponds’ disposal area. The surface area and storage capacity, respectively, of 

settling pond #1 are 27.1 acres and 1,200,000 cubic yards; of settling pond #2: 38.2 acres and 1,490,000 cubic yards; 

and of settling pond #3: 3.1 acres and 20,000 cubic yards. The discharges are subject to NDPDES Permit #ND0025232.

154 EPA Minefill Site Visit (2002).

155 Buckley and Pflughoeft-Hassett (2008).

156 According to the Lignite Energy Council’s website: http://www.lignite.com/?id=89&ncid=6&nid=249, the 

Glenharold Mine was the major lignite supplier to LOS until it was abandoned in1993. 

157 According to EPA Minefill Site Visit (ibid), the Glenharold Mine fly ash landfill consists of five cells in total, 

with one closed and one that was active during that site visit. Disposal has occurred since 1995 at this site, which 

consists of pre-MCRA, unreclaimed mineland owned by Basin Electric. The plan is to reclaim the cells as they are 

filled, to avoid open face as much as possible. The liner is 2 feet of compacted clay (with permeability of less than 

10-8 or 10-9cm/sec) and is located on top of 40-50 feet of natural clays above the coal seam/water table. As soon as 

the liner is in place it is covered with 3 feet of fly ash to protect it from the winter’s freeze and thaw and from 

precipitation. All storm water runoff and leachate is managed onsite. Contact water is directed to a clay-lined pond 

that is then sprayed back onto the landfill to control dust. Runoff outside of the landfill area is directed to an 

NPDES-permitted pond.

158 EPA-HQ-RCRA-2009-0640-2086.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

36

Underneath the coal ash ponds, the uppermost clay layer ranges in thickness between 0 to 26 feet, with an 

average of 8 feet, and is generally dry. Underneath the clay is a silt and sand layer that contains the 

groundwater of the Missouri River Aquifer with thickness varying between 2 to 25 feet and averaging 8 

to 9 feet. According to the plant’s potentiometric maps, the groundwater exhibits both a northeasterly and 

a southeasterly flow from the plant’s and ash ponds areas to the Missouri River. The rate of movement is 

estimated at 0.9 feet per year. 

According to Croft (1973), the Missouri River Aquifer underlies the terraces and flood plains of the 

Missouri River from Garrison Dam to the southeast corner of Oliver County. The aquifer ranges from less 

than a quarter of a mile to 2.5 miles in width and is over 200 feet thick northeast of Hensler. An aquifer 

test made 2 miles north of Hensler indicated that the aquifer at that site had a transmissivity of 14,300 to 

16,200 feet2/day and a storage coefficient of about 0 .02, and yields of more than 500gpm can be expected 

from the aquifer north of Hensler.159 In 20001, there were ten groundwater monitoring wells: three upgradient, seven down-gradient, and two dry. The site’s ground water is not usable, with a total dissolved 

solids concentration (TDS) of 4,000 mg/L. In comparison, leachate from the landfill has a TDS of 2,000 

mg/L.160

Alderin Creek, an intermittent stream that drains the disposal sites, discharges into the Missouri River and 

recharges the Missouri Aquifer, which in the area of the plant, is two miles wide. The impact of the 

disposal sites on the creek could not be assessed as water quality data for the creek were not available.

Impact and Damage Claims: EIP (2010a) states that the oldest groundwater monitoring data available 

for review was found in trend graphs of sampling dating to 1991. From 1982 to 1996, LOS sampled, on a 

quarterly basis, 11 groundwater monitoring wells, three surface water locations, and CCR leachate from 

Pond 2. As of 1997, the frequency of sampling was reduced to once per year.

EIP (2010a) indicates that arsenic and lead exceeded primary EPA Maximum Contaminant Levels 

(MCLs) in onsite groundwater. Additionally, sulfate and total dissolved solids (TDS) exceeded secondary 

EPA MCLs (SMCLs) in onsite groundwater. Increasing trends in sulfates and total dissolved solids are 

evident in down-gradient wells 22-ADB and 22-DAA3, where arsenic concentrations exceeded the MCL 

in 2009. Well 22-DAA3 also had the highest iron concentrations reaching up to 25.3 mg/L (more than 84 

times the SMCL) in 2009.

EIP (2010a) also indicates detections of boron and selenium in onsite groundwater; however, the 

selenium concentrations did not exceed primary EPA MCLs and only an unspecified state groundwater 

standard was referred to for boron.161 Surface water was sampled quarterly, although it is not specified 

where and no data were provided.

In response to EIP’s (2010a) claim: "Arsenic exceedances were found in three monitoring wells in 2009: 

22 ADB (0.0269 mg/L), about 150 feet down-gradient from Pond 5; 22-ABC (highest exceedance at 

0.0789 mg/L), about 100 feet down-gradient from Pond 2, 3, and 4; and 22-DAA3 (0.0259 mg/L), 

 

159 Generally, the water contains moderate amounts of dissolved mineral constituents. Sodium and bicarbonate were 

the principal cations and anions in the samples. Total dissolved solids (TDS) ranged from 585 to 1,660ppm, and 

boron ranged from 0.05 to 1.3ppm. However, note that the plant site’s groundwater is not usable, due to a total 

dissolved solids concentration (TDS) of 4,000 mg/L. Two water samples from the Missouri River about 1,500 south 

of Garrison Dam indicate that the river water contains less dissolved mineral matter than the water in the Missouri 

River Aquifer (e.g., 420 to 427ppm TDS, and 0 to 0.34ppm boron).

160 EPA Minefill Site Visit (ibid).

161 EIP (2010a) claims that no data was available in the files reviewed for the sole “up-gradient” well, 22-CDB 

located adjacent to Pond 4, and no offsite groundwater data are available.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

37

about150 feet down-gradient from Pond 5," Basin Electric Power Cooperative (BEPC) states162 that 22-

ABC exhibits concentrations of arsenic ‘causing concern to Basin Electric’. Well 22-ABC2 was installed 

in 1990 at essentially the same location/depth as 22-ABC to verify the arsenic levels previously observed 

in 22-ABC. Arsenic s values in 22-ABC2 are typically < 0.005 mg/L and always < 0.02 mg/L.163 BEPC 

contends that since 22-ABC2 monitors the same hydro-geologic unit as 22-ABC and concentrations vary 

by a factor of 10, it brings the data into question, or, alternatively, elevated arsenic concentrations in 

groundwater are extremely localized. Further, it is possible that 22-ABC (which was installed in 1982) 

was improperly installed or is in direct contact with ash.164

In reference to another EIP (2010a) statement: "Lead was measured in 2006 in well 22-DCC at 0.0716 

mg/L, 4.7 times the MCL. This well's location was not delineated on a map," BEPC responds that 22-

DCC is up-gradient of the ponds, as depicted on maps in NDDoH files. As such, it would appear that lead 

may be naturally occurring or from a source other than the ash ponds. Further, lead concentrations (if 

detected at all) in ash pond water are < 0.01 mg/L, which is less than the concentration observed in the 

well. Thus, BEPC claims, surface impoundment water could not be the source of the lead. Lead was not 

detected in this well in 2009. 

Finally, citing EIP’s (2010a) statement that "selenium was detected in 2004 in all down-gradient wells, 

but not above the MCL of 0.05 mg/L; the highest level of selenium, 0.0244 mg/L, was in 22-DCC," 

BEPC responds that 22-DCC is an up-gradient well. If selenium is present in up-gradient wells, it would 

likely be observed in down-gradient wells too.165

Evaluation against Proven Damage Criteria166

 

162 Basin Electric Power Cooperative, comment to the proposed CCR rule docket, virtual pages 20-21: 

http://www.uswag.org/pdf/2010/CCR%20Comments/BasinElectric11192010pdf.pdf

163 Note that these values are still in exceedance of the federal MCL for arsenic!

164 Note that in its comment, Basin Electric does not deny the arsenic exceedances in the two other wells. NDDoH. 

In their comment to the proposed CCR rule docket (EPA-HQ-RCRA-2009-0640-8211) state ‘(EIP 2010a) failed to 

realize that naturally occurring arsenic concentrations exceed those measured in these wells, at many locations in 

North Dakota. One reference to elevated lead appears to be an anomaly, since it is an upgradient well, and lead is 

not typically elevated in North Dakota CCRs.’

165 Note, however, that due to the interaction between the Missouri River Aquifer and the River stages, the 

designation of any given monitoring well as ‘up-gradient’ should be regarded with caution.

166 ICF (2010a).

Criteria Evaluation

Criterion 1: Documented exceedances of primary 

maximum contaminant levels (MCLs) or other 

health-based standards measured in groundwater at 

sufficient distance from the waste management unit 

to indicate that hazardous constituents have 

migrated to the extent that they could cause human 

health concerns

 Onsite groundwater exceeded primary EPA MCLs 

for arsenic and lead.

 Onsite groundwater exceeded EPA SMCLs for 

sulfate and TDS.

 No offsite groundwater data are available.

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage to 

human health or the environment (e.g., ecological 

damage)

 None

Criterion 3: Where there has been an 

administrative ruling or court decision with an 

 None
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

38

Other Considerations

 There are reportedly three municipal drinking water wells within five miles of the site.

 The USEPA classified this site as “Indeterminate” in their 2007 report167 due to insufficient 

information.

Resolution: According to EIP (2010a), no state enforcement actions have been taken. NDDoH claims, 

however, that it was with state encouragement that LOS converted to a dry fly-ash handling system and 

closed the fly-ash disposal ponds in 1996. Since then, the remaining impoundments are only used for lowtoxicity boiler slag.168 USWAG claims that this Site does not meet the criteria for a damage case.169

ICF (2010a) Rationale: Potential Damage. <Groundwater exceedances of primary and secondary EPA 

MCLs have been found onsite. There has not been any assessment of groundwater or surface water 

offsite. There are no regulatory corrective actions, administrative rulings, or court decisions associated 

with these ash ponds.>

References

EIP (2010a): In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their 

Environment, Thirty-nine New Damage Cases of Contamination from Improperly Disposed Coal

Combustion Waste, Case #20, Environmental Integrity Project, EarthJustice and Sierra Club, August 26, 

2010. 

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

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

Appendix C, Case #20. ICF, 10/2010.

USEPA (2007): Coal Combustion Waste Damage Case Assessments, EPA‐HQ‐RCRA‐2006‐0796‐0015. 

July 2007. Accessed Online May 2012.

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

Lignite Energy Council, Leland Olds Station. Accessed Online May 2012.

http://www.lignite.com/?id=73&page=Leland+Olds+Station

Basin Electric Power Cooperative (2009): Response to a Request for Information Under Section 104(e) of 

the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9604(e), Basin 

Electric Power Cooperative, March 25, 2009. Accessed Online May 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/basin-leland.pdf

 

167 USEPA (2007), Table 2.

168 NDDoH comment to the proposed CCR rule docket: EPA-HQ-RCRA-2009-0640-8211.

169 Comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211): “Allegations of off‐site groundwater 

receptors, and ecological receptors in sediments and surface water, were included with a “?” since the alleged 

damage receptors were not supported in the Reference Document with credible information. The information 

presented in the Reference Document did not identify locations of off‐site private or public wells, distances to wells, 

or whether they were up-gradient or down-gradient from the site. This case does not meet the criteria for a damage 

case because the allegations do not contain any documented evidence of off‐site groundwater monitoring data or off‐

site groundwater monitoring data showing exceedances of specified health‐based criteria. The USEPA classified this 

site as “Indeterminate” in their 2007 report due to insufficient information; no new information has been provided 

pertaining to this site in the Reference Document.”

explicit finding of specific damage to human health 

or the environment
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

39

Tillotson (2002): Coal Combustion Waste North Dakota Regulatory Perspective. Steven J. Tillotson, 

Division of Waste Management, North Dakota Department of Health, Environmental Health Section

Bismarck, North Dakota, April 2002. Accessed Online May 2012.

http://www.ndhealth.gov/wm/Publications/CoalCombustionWasteRegulatoryPerspective.pdf

Buckley and Pflughoeft-Hassett (2008): Review of North Dakota Regulations, Standards, and Practices 

Related to the Use of Coal Combustion Products; T. D. Buckley and D. F. Pflughoeft-Hassett. Final 

Report for North Dakota Industrial Commission, Basin Electric Power Cooperative, Great River Energy, 

and Minnkota Power Cooperative; EERC Publication 2008-EERC-03-10; Energy & Environmental 

Research Center: Grand Forks, ND, April 2008. [This report can be located also as a comment to the 

docket: EPA-HQ-RCRA-2009-0640-2086; and as Appendix E, at the following site (Accessed Online 

May 2012): http://www.osti.gov/bridge/servlets/purl/958067-hXNBG2/958067.pdf) 

GEI Consultants (2011): Specific Site Assessment for Coal Combustion Waste Impoundments at Basin 

Electric Leland Olds Station, Stanton, North Dakota. GEI Consultants, June 2011. Accessed Online May 

2012.

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

EPA Minefill Site Visit (2002): U.S. EPA Site Visit Report, Coal Combustion Waste Minefill 

Management Practices, North Dakota. Draft Final, December 11, 2002. Accessed Online May 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/sites/nd-visit.pdf

North Dakota State Water Commission: The Geology and Groundwater Resources of Mercer and Oliver 

Counties. Accessed Online January 2013.

http://www.swc.nd.gov/4dlink9/4dcgi/GetContentRecord/PB-271

Croft (1973): Ground-Water Resources, Mercer and Oliver Counties, North Dakota, M.G. Croft, U.S. 

Geological Survey; County Ground Water Studies 15 – Part III, North Dakota State Water Commission, 

and Bulletin 56 – Part III, North Dakota Geological Survey. Accessed Online January 2013.

http://www.swc.nd.gov/4dlink9/4dcgi/GetSubContentPDF/PB-301/MercerOliver_Part_3.pdf

Basin Electric Power Cooperative Bart Study (2006): Bart Determination Study for Leland Olds Station 

Unit 1 and 2, Basin Electric Power Cooperative, Best Available Retrofit Technology Analysis Final Draft, 

Burns & McDonnell, August 2006, 37640. Accessed Online April 2013.

http://www.ndhealth.gov/AQ/RegionalHaze/Basin%20LOS%20BART%20Report.pdf

PTb39. Cardinal Fly Ash Reservoir (FAR) 1 and 2, American Electric Power, Brilliant, 

Wells Township, Jefferson County, OH

Type: Landfill and Surface Impoundments.

Background and Description: American Electric Power’s (AEP) Cardinal Plant170 is located in 

Brilliant, Ohio. It consists of three active and one decommissioned disposal areas: a closed, unlined coal 

 

170 The Cardinal Plant, operative since 1967, is a three-unit 1,830 MW coal-fired generating station (Units 1 and 2 

each have a generating capacity of 600 megawatts, while Unit 3 has a generating capacity of 630 megawatts). A 

scrubber system on two of the Plant’s three coal-fired generators with accompanying facilities to handle and convey 

limestone and gypsum was completed in 2007: http://www.r-s.com/Projects/Pages/AEP-Cardinal-Plant-06/. The 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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ash pond (Fly Ash Reservoir or FAR 1); an active, unlined Fly Ash Reservoir (FAR 2); a flue gas 

desulfurization (FGD) landfill,171 and a Bottom Ash Complex. The Bottom Ash Complex, located 

adjacent to the main plant facility along the Ohio River comprises two impoundments: a Bottom Ash 

Pond and a Recirculation Pond. The active FGD ‘landfill’ (FAR 2), as well as the former FAR 1172 are 

located about1 to 2 miles to the north of the plant, on the east and west branches of Blockhouse Run.173

The Block House Hollow, a tributary of the Ohio River, was dammed to create the ash ponds. Water 

discharged via Outfall 019 into Block House Hollow is regulated by a NPDES permit.174 Groundwater 

and surface discharge water have been evaluated onsite; however, no offsite assessment or monitoring has 

been required.

The Bottom Ash Complex is a multi-pond system where other wastewaters are separately treated in 

contiguous cells. This pond complex typically also include secondary (and in some cases, tertiary) settling 

ponds for final "polishing" of effluent quality. It receives bottom ash, pyrite, and yard drainage for 

disposal. An interior separator dike spans the primary eastern and western dikes, creating the Bottom Ash 

Pond where the CCR is initially discharged, and the Recirculation Pond where the decanted CCR sluicing 

water is taken up and recycled through the plant to sluice fly ash to the active FAR 2. In 2008, vinyl sheet 

piling was driven into the bottom of the Recirculation Pond to form a baffle wall and create a separate 

settling pond in the southern portion of the Recirculation Pond.175

The site is in a non-glaciated area of Ohio. The local geologic conditions at the Bottom Ash Complex are 

likely to consist of alluvial silt, clay and/or sand deposited by the Ohio River flood water, and glacial 

outwash sand and gravel deposits. These unconsolidated deposits overlie bedrock of the PennsylvanianAged Conemaugh Formation comprising inter-bedded shales, sandstones, coal, and limestone. Fly Ash 

Dam No.1 and Fly Ash Dam No. 2 lie in the upland areas above the Ohio River flood plain and the 

surficial soils in these locations consist of residuum on flatter hillcrest areas and colluvium at the base of 

slopes or on hillsides derived from the local bedrock. The bedrock formations include the aforementioned 

Conemaugh Formation and the Monongahela Formation in higher elevations. The Monongahela 

Formation typically contains inter-bedded coal, shale, and sandstone.176

According to EIP (2010a), hydrogeological reports conducted at the site identify three aquifers underlying 

AEP Cardinal’s property (from shallow to deep): the Shallow Aquifer; the Morgantown Sandstone 

Aquifer; and the Cow Run Sandstone Aquifer. Water from the impoundments comes into direct contact 

 

scrubber for the third generating unit is under construction:

http://theintelligencer.net/page/content.detail/id/556002/AEP-Could-Close-Kammer-Plant.html?nav=515

171 FAR 1, constructed in the early 1970s on the western branch of Blockhouse Run, was decommissioned in 1991 

and closed in 2000. Much of its ash was transferred to the still active FAR 2. However, FAR 1 still contains more 

than 100 feet of fly ash. The FGD landfill is a Class III Residual Waste Landfill with a synthetic liner. The landfill 

was built on the footprint of FAR 1 (an ‘overfill’), and is also partially-sited over a remnant mine spoil bench and 

against a remnant mining highwall. (Geosynthetic Consultants, 2012, and Ohio EPA, 2005).

172 Commissioned in 1987.

173 The surface area and storage capacity, respectively, of the active ash ponds are as follows: the Bottom Ash 

Complex: 31.8 acre and 350 acre-feet; the Fly Ash Reservoir 2: 95.8 acre and 11,350 acre-feet. (Cardinal, 2009).

174 Ohio State Permit No. 0IB00009 (Federal Application No. OH0012581) authorizes discharge under the National 

Pollutant Discharge Elimination System (NPDES) to the Ohio River. This permit also covers the active landfill in 

the decommissioned FAR 1 and FAR 2 and surface runoff locations not containing coal combustion waste 

controlled by AEP on the site (CHA, 2009).

175 At the northern extremity of the Bottom Ash Complex (Bottom Ash Pond and Recirculation Pond), adjacent to 

the incised wall, interior containment dikes provide a pair of temporary holding basins totaling roughly an acre in 

surface area for dredged bottom ash material reclaimed from the Bottom Ash Pond. This ash is recycled as 

construction material, placing in the landfill, or site grading activities at the facilities. (CHA, ibid).

176 CHA (ibid).
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

41

with outcroppings of the Shallow Aquifer and Morgantown Sandstone in the former, dammed Block 

House Hollow stream valleys. The Shallow Aquifer and Morgantown Sandstone are separated by a layer 

of shale. The Morgantown and Cow Run Sandstone aquifers are separated by a layer of shale, limestone 

lenses, and siltstone.177, 178

Impact and Damage Claims: Groundwater: EIP (2010a) indicates that levels of arsenic (up to 0.1 

mg/L) exceeded the primary EPA Maximum Contaminant Level (MCL) for onsite groundwater. 

Additionally, boron, up to 5.57 mg/L, also exceed the EPA Child Health Advisory Level in several wells, 

and molybdenum (up to 0.43 mg/L) exceeded the EPA Lifetime Health Advisory (0.04 mg/L) 10 times in 

onsite groundwater.179 AEP reported statistically significant increases of CCR constituents in groundwater 

monitoring wells to OH EPA as early as in 1999 and 2000, with exceedances of MCLs and Health 

Advisory Levels first detected in 1993.

According to citation of OH EPA and AEP reports in EIP (2010a), FAR 1 and FAR 2 are in direct contact 

with the Shallow and Morgantown Sandstone Aquifers. Changes in groundwater levels over time indicate 

that the coal ash water in these impoundments has become a major source of recharge for the 

Morgantown Sandstone Aquifer. AEP itself admits that the continued inundation of the aquifer by water 

from FAR 2 will at least in the short-term have “a significant influence on groundwater quality from ash 

pond recharge.” OH EPA has determined that mounding has occurred in groundwater around the site 

based on steadily rising head levels in wells around FAR 1, which allows groundwater from the disposal 

area to flow to well S-2, which may have been up-gradient before disposal began, but now is 

contaminated.180

Surface Water: EIP (2010a) also indicates that detectable levels of arsenic (up to 0.204 mg/L) and 

molybdenum (up to 0.284 mg/L) are being discharged into Block House Hollow via NPDES-permitted 

Outfall 019. No criteria are cited and the NPDES permit has no limit on these constituents. The creek 

receiving this discharge in Blockhouse Hollow runs directly beside the Tidd-Dale Subdivision but has yet 

to be sampled. A 2008 annual inspection report noted seepage through a spring along the Morgantown 

 

177 According to EIP (2010a), the original direction of flow for the Shallow Aquifer and Morgantown Sandstone 

generally followed the shape of the topography with the aquifers sloping down along the bluffs that overlook the 

Ohio River and into the stream valleys. However, water from FAR 1 and 2 has inundated the Shallow and 

Morgantown Sandstone Aquifers and significantly altered groundwater flow patterns around the disposal area. Head 

levels in one groundwater monitoring well rose by 80 feet over a 12-year period. The original direction of flow 

around FAR 1 was to the south-southwest, but this direction has shifted, as evidenced by changes in head levels and 

concentrations of ash indicator parameters in groundwater monitoring wells. The new direction of groundwater flow 

has been difficult to determine due to influence from both FAR 1 and FAR 2. Concentrations of ash indicators in 

wells down-gradient of FAR 2 indicate flow south toward the FAR 2 dam and to the south-southeast. Seeps have 

appeared around the FAR 2 dam as the water level in FAR 2 has increased.

178 For the groundwater resources of Jefferson County, Ohio, see Hogan et al., (No date).

179 According to EIP (2010a), the well showing the highest arsenic levels (S-2) is designated “up-gradient” by the 

plant’s contractors, but this well consistently has high levels of boron (1.71-5.57 mg/L) and molybdenum (up to 

0.024 mg/L) in contrast to non-detected concentrations in most up-gradient wells. Both parameters are designated 

ash indicators for the site in the shallow aquifer. OH EPA has determined that mounding has occurred in 

groundwater around the site based on steadily rising head levels in wells around FAR 1, which allows groundwater 

from the disposal area to flow to well S-2. This well may have been up-gradient before disposal began, but now is 

contaminated. Other down-gradient wells have shown levels of boron (up to 4.55 mg/L) and molybdenum (up to 

0.43 mg/L) above EPA Health Advisory Levels.

180 OH EPA, 2010, in EIP, 2010a.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

42

Sandstone outcrop in the hillside adjacent to the west rock groin in FAR 2, which began to carry ash 

between February and April of 2004.181

The Tidd-Dale Subdivision, which is approximately 2,000 feet from the FAR 2 dam, relies on private 

drinking water wells. According to the latest potentiometric map of the Cardinal Plant, which indicates 

the direction of groundwater flow, the Tidd-Dale Subdivision is in the direct path of groundwater flow 

from FAR 2. At least nine private wells are located in the subdivision, but OH EPA has not required any 

sampling of these wells.182

AEP asserts that groundwater contamination was due to previous mining and other sources of pollution. 

Shallow well S-2 is designated as an up-gradient well, but AEP claims183 that due to the influence from 

previous surface mining activity and ash disposal operations, it is not appropriate to use the data from this 

well in comparison to down-gradient groundwater data. S-2 has elevated arsenic, boron and molybdenum 

relative to the facility’s non-impacted shallow aquifer monitoring wells. The source of elevated arsenic 

has not been established. Furthermore, AEP claims that in the deeper Cow Run aquifer, which is 

hydraulically disconnected from the influence of the ash leachate, arsenic has been observed at 0.41 mg/L 

(x40 the MCL). The entire Morgantown groundwater aquifer is not contaminated although there are 

elevated levels of boron and molybdenum in monitoring wells close to the FAR 2 dam, as well as to the 

east of the FAR 2 ash pond.

AEP184 also challenges EIP’s (2010a) assertion that the Tidd-Dale Subdivision is in the direct path of 

groundwater flow from the FAR 2: groundwater travel to the underlying aquifer, within which domestic 

wells are screened, is restricted by a shale aquitard. In addition, significant natural attenuation along the 

flow path reduces the risk of groundwater contamination to a de-minimis level. A domestic drinking 

water well within the Tidd-Dale Subdivision, sampled and analyzed in April 2011, contained no 

exceedances of EPA MCLs for antimony, arsenic, barium, beryllium, cadmium, chromium, copper, lead, 

mercury, selenium, thallium, cyanide, fluoride, nitrate, and nitrite.

Evaluation against Proven Damage Criteria185

 

181 AEP (2008) in CHA (2009). Since that time the report indicates that the spring has exhibited clear flow, and 

CHA was not aware of any unpermitted release citations as a result of this seepage activity.

182 According to EIP (2010a), data from Ohio Department of Natural Resources’ (DNR) Groundwater Mapping 

Query yielded a total of 16 private wells within a two mile radius of the AEP Cardinal site. In addition, there are a 

total of five public drinking water sources within a five mile radius of the site, one of which is located east of the 

Tidd-Dale Subdivision, less than two miles from the FAR 2 dam.

183 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0202

184 Comment to the 2011 NODA docket, Ibid.

185 ICF (2010a).

Criteria Evaluation

Criterion 1: Documented exceedances of primary 

maximum contaminant levels (MCLs) or other 

health-based standards measured in groundwater at 

sufficient distance from the waste management unit 

to indicate that hazardous constituents have 

migrated to the extent that they could cause human 

health concerns

 Onsite groundwater exceeded the primary EPA 

MCL for arsenic.

 Onsite groundwater exceeded the EPA Child Health 

Advisory for boron and the EPA Lifetime Health 

Advisory for molybdenum.

 No offsite groundwater data are available. 

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage to 

 Detectable levels of arsenic and molybdenum have 

been observed in the discharge water into Block 

House Hollow via Outfall 019. 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

43

Other Considerations: In its 2007 Damage Case Assessment Report, US EPA rejected both the 

Cardinal Fly Ash sites as damage cases with no evidence of onsite or offsite exceedances, 186 but more 

recent data identified exceedances as a result of which OH EPA required groundwater monitoring.

Resolution: The Ohio Environmental Protection Agency (OH EPA) placed four wells under assessment 

monitoring due to groundwater contamination. According to EIP (2010a), AEP’s 2002 Ground Water 

Monitoring Assessment Report asserted that the groundwater contamination was due to previous mining 

and other sources of pollution. However, evidence of groundwater contamination was sufficient for OH 

EPA to request an expansion of the monitoring program in 2004 to determine the full extent of possible 

contamination. In 2009, AEP submitted a second Assessment Monitoring Report to OH EPA based on the 

results of the expanded groundwater monitoring program, which included wells downgradient of FAR 2. 

AEP states187 that in 2010 the Cardinal Plant installed four additional groundwater monitoring wells to 

identify the nature and extent of elevated levels of boron and molybdenum in three different monitoring 

wells (M-11, M-21, and M-22). The Plant is in the process of evaluating data from these monitoring wells 

as well as an identified seep in the valley sidewall of Blockhouse Hollow.

Ohio EPA concedes188 that data from monitoring wells around the FAR 2 indicate elevated levels of 

boron and molybdenum in the Morgantown Aquifer due to a release from the ash pond. Because of the 

proximity of the ash pond to the FGD landfill, the solid waste permit requires that the groundwater 

monitoring, assessment, and corrective action requirements also apply to the ash pond. The operator is 

conducting a groundwater assessment of the ash pond in compliance with the solid waste rules.

USWAG claims that this Site does not meet the criteria for a damage case.189

ICF (2010a) Rationale: Potential Damage. <Groundwater exceedances of primary EPA MCLs for 

arsenic have been found onsite. Additionally, other EPA advisory levels for boron and molybdenum have 

been exceeded onsite. There is no evidence or studies of surface water discharges damage to human 

 

186 US EPA (2007) cites a 2001 reference (footnotes # 136 and 137) whereby an Ohio regulator stated there were, 

among other CCR waste units in the state, two fly ash disposal units at the Cardinal Plant that have shown increased 

sulfate levels in surrounding monitoring wells. Based on further study, US EPA (2007) concluded that for both the 

Cardinal PFBC Monofill (Case #69) and the Cardinal FAR II Impoundment (Case #70), the State had ground water 

monitoring site data for the site, but the data did not show any exceedances of primary or secondary MCLs. 

Furthermore, according to the State’s hydrogeologist, interpretation of the data was occluded by mining impacts in 

the area. Therefore, in the absence of documented evidence of proven or potential damage to human health or the 

environment, both these sites were categorized in US EPA (2007) as ‘rejected’ cases.

187 EPA-HQ-RCRA-2011-0392-0202.

188 Comments to the 2010 CCR proposal and the 2011 NODA dockets: EPA-HQ-RCRA-2009-0640-8226 and EPAHQ-RCRA-2011-0392-0163, respectively.

189 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0211. “No regulatory enforcement actions 

have been taken by USEPA or Ohio EPA. Assessment monitoring is currently being conducted as directed by Ohio

EPA. This case does not meet the criteria for a damage case because the allegations do not contain any documented 

evidence of off‐site groundwater monitoring data or off‐site groundwater monitoring data showing exceedances of 

specified health‐based criteria. Further, the USEPA rejected this site as a damage case in 2007”.

human health or the environment (e.g., ecological 

damage)

Criterion 3: Where there has been an 

administrative ruling or court decision with an 

explicit finding of specific damage to human health 

or the environment

 None
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

44

health or the environment. Onsite assessment monitoring has been required by the OH EPA; however, 

there are no other regulatory corrective actions, administrative rulings, or court decisions associated with 

the ash ponds or landfill.>

References

EIP (2010a): In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their 

Environment, Thirty-nine New Damage Cases of Contamination from Improperly Disposed Coal 

Combustion Waste, Case #23, Environmental Integrity Project, EarthJustice and Sierra Club, August 26, 

2010. 

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

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

Appendix C, Case #23. ICF, 10/2010.

US EPA (2007): U.S. Environmental Protection Agency (US EPA), Office of Solid Waste. Coal 

Combustion Waste Damage Case Assessments July 9, 2007. Cases No. 59 and 60, Cardinal PFBC 

Monofill and Cardinal Fly Ash Reservoir II Impoundment. Docket Number EPA-HQ-RCRA-2006-0796-

0015. Accessed Online May 2012.

CHA (2009): Assessment of Dam Safety Coal Combustion Surface Impoundments (Task 3) Final Report

American Electric Power Cardinal Power Plant, Brilliant, Ohio. CHA, December 9, 2009. Accessed 

Online May 2012.

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

Cardinal (2009): American Electric Power Cardinal Power Plant’s Response to Request for Information 

under Section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act, 

42 U.S.C.9604(e), March 31, 2009. Accessed Online May 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/survey-cardinal.pdf

Geosynthetic Consultants (2012): Design of FGD Residuals Disposal Facility over Existing Fly Ash 

Reservoir for American Electric Power Cardinal Plant. Geosynthetic Consultants, 2012. Accessed Online 

May 2012. 

http://www.geosyntec.com/ui/default.aspx?m=viewproject&p=13

Hogan et al., (No date): Ground-Water Resources of Carroll, Harrison and Jefferson Counties AEX490.89, Mike Hogan, James M. Raab, and Larry C. Brown, Ohio State University Extension Fact Sheet. 

Accessed Online May 2012.

http://ohioline.osu.edu/aex-fact/0490_89.html

Ohio EPA (2005): Ohio Environmental Protection Agency, Draft Permit-to-Install Cardinal FAR1 

Residual Waste Landfill (PTI Number 06-07993), October 27, 2005. Accessed Online May 2012.

http://www.epa.ohio.gov/portals/34/document/issued_actions/aa-07-032.pdf
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

45

PTb40. General James M. Gavin Power Plant, American Electric Power (AEP) - Ohio 

Power Company, Cheshire, Gallia County, OH

Type: Landfills and Surface Impoundment.

Background and Description: The General James M. Gavin Power Plant,190 located in Cheshire, Ohio, 

has disposed of coal combustion residual (CCR) from American Electric Power d/b/a Ohio Power 

Company (AEP) in landfills since 1994. The landfill occupies 255 acres along the Ohio River and its 

tributaries. The original landfills (now decommissioned191) included Phase A (80 acres), Phase B (50 

acres), and Phase C (111 acres), each established in a discrete valley, that were ultimately merged into

one, continuous landfill area. Currently, Phase D, Phase E, and Phase F are active, receiving fly ash 

mixed with FGD sludge. All inactive/active landfills are lined with 1.5 foot of clay and a 30-mil 

geosynthetic/PVC liner.192 The landfills have also leachate collection system. There are three small ponds 

that collect storm water runoff and leachate from the CCR landfill that are permitted as part of the landfill 

operation. They are located to the south, east and northeast of the landfill and appear to be lined with a 

geosynthetic liner.193

In addition, there are two unlined impoundments: (i) The Bottom Ash Pond, an active, 85-acre diked 

impoundment located on the south side of the plant that receives bottom ash, pyrite, and yard drainage for 

disposal, and from where the ash is removed periodically for beneficial reuse.194 (ii) The Stingy Run Dam, 

located on Stingy Run195 about 2.25 miles northwest of the plant, a 324.5-acre decommissioned, but still 

uncapped, fly ash pond.196 Finally, four shallow storm water runoff collection ponds are located around 

the perimeter of the coal pile. There are several NPDES permitted outfalls onsite discharging into surface 

water bodies including tributaries of the Ohio River.197 Groundwater has been monitored onsite, and 

surface water from outfalls and offsite has been monitored as well. 

According to CHA (2009), the site is in a non-glaciated area of Ohio. The local geologic deposits at the 

Bottom Ash Pond are likely to consist of alluvial silt, clay and/or sand deposited by the Ohio River 

floodwaters and glacial outwash sand and gravel deposits overlying bedrock categorized as part of the 

Upper-Pennsylvanian Conemaugh Group. The 350 feet-thick Conemaugh Group consists predominantly 

of inter-bedded shale, sandstone, coal, and limestone.198 At Stingy Run Dam, which is outside of the 

floodplain, the surficial materials are likely colluvium resulting from local bedrock, and scattered areas of 

 

190 The generating capacity of the Gavin Plant comprises 2,600 MW, generated by two equal size units established in 

1974 and 1975.

191 They were commissioned in 1994, 1996, and 1998, respectively. As of 2009, Phase A was still undergoing the 

final cover process and Phase B’s final cap was installed in 2003.

192 According to EIP (2010a), Phases D and E will be placed on top of the three initial phases.

193 CHA (2009); this source mentions only two leachate ponds, while AEP reports, as cited in EIP (ibid), three 

leachate ponds (Nos. 1, 2, and 3). According to EIP (ibid), notable impacts were not observed in groundwater 

around these ponds in the data examined for this report.

194 According to AEP (2009), the bottom ash pond complex, with a storage capacity of 1,530 acre-feet, is a multipond system where other wastewaters are separately treated in contiguous cells. These pond complexes typically 

also include secondary (and in some cases, tertiary) settling ponds for final "polishing" of effluent quality.

195 Stingy Run is a tributary to Kyger Creek that discharges into the Ohio River about 2 miles south of the Gavin 

Power Plant: CHA (ibid)

196 According to AEP (ibid), the storage capacity of this inactive pond, decommissioned in 1994, is 23,365 acre-feet. 

Currently, this impoundment serves as a pH buffer for Acid Mine Drainage.

197 NPDES # OH0028762. This permit is valid between August 1, 2008 and January 31, 2013. 

198 http://ngmdb.usgs.gov/Geolex/NewRefsmry/sumry_1192.html. The black calcareous shale is rich in pyrite and 

carbonaceous matter. See also Brezinski and Kollar (2011).
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

46

residuum. The adjacent bedrock formation is part of the Upper-Pennsylvanian Monongahela Group,199

which consists of inter-bedded sedimentary rocks akin to the Conemaugh Group, with the exception of 

the limestone.

According to EIP (2010a), AEP claims that, “the hydrogeology of the disposal site is characterized by a 

multi-level perched water table bedrock aquifer system”. However, in reality, underlying the 

Connellsville Sandstone, the first perched water table beneath the landfill, there are two regional aquifers: 

the Morgantown Sandstone and the yet lower Cow Run Sandstone aquifers.200 Potentiometric data

indicate a downward flow from the predominantly silty-clay surface alluvium201 into the underlying 

bedrock.

According to AEP, groundwater flow changes depending on which valley of the landfill it flows through. 

The directions of groundwater flow include a northeasterly direction through and under landfill Phases C 

and D; a flow that curves southeast at first, but then reorients to a western direction under and through 

landfill Phases B and E; and a flow toward the south through the landfill’s Phase A. 

Impact and Damage Claims: EIP (ibid) indicates that levels of arsenic, barium, cadmium, lead, and 

gross alpha exceeded primary EPA Maximum Contaminant Levels (MCLs) in onsite groundwater. 

Additionally, chloride, manganese, and total dissolved solids (TDS) exceeded secondary EPA MCLs 

(SMCLs) and molybdenum exceeded the EPA Lifetime Health Advisory (LTHA) level in onsite 

groundwater.

According to EarthJustice,202 The contamination appears to be spreading as the number of wells 

contaminated with alpha activity above the MCL has doubled from 1994 to 2009 and has reached a 

monitoring well some 700 feet south of the landfill and in the direction of contaminant flow.203 The 

following MCL exceedances have been found: alpha particles (1,497 pCi/L),204 arsenic (0.057 mg/L), 

barium (13.8 mg/L), cadmium (0.007 mg/L), and lead (0.051 mg/L). Molybdenum levels in that well 

reached ten times the LTHA (0.409 mg/L). No offsite groundwater monitoring data are available.

EIP (ibid) challenges the characterization of Wells No. 94126 and No. 94128 as “up-gradient” wells. The 

highest barium concentration measured at the site was at Well No. 94126 at 13.8 mg/L (6.9 times the 

MCL), and barium levels have been increasing at this well for a long time. High alpha activity has been 

measured at the well (137 pCi/L in 1994, 9.1 times the MCL). However, according to an AEP report, the 

water level of Well No. 94126 was almost 30 feet lower than the water elevation of the center of the 

landfill. The higher water level in the landfill compared to this well within 200 feet of the landfill 

suggests contaminants would flow from the landfill to the well. In addition, Wells No. 94126 and No. 

94128 are nested in the same location in a valley at a surface elevation that is 150–200 feet downhill from 

the decommissioned fly ash pond, which still contains large areas of open water. Well No. 94128 is 

screened in the shallow Morgantown Sandstone aquifer directly underneath unconsolidated alluvium and 

Well No. 94126 is screened below the Morgantown Sandstone in the uppermost portion of Cow Run 

Sandstone aquifer. 

 

199 http://ngmdb.usgs.gov/Geolex/NewUnits/unit_2826.html

200 The Connellsville Sandstone, the Morgantown Sandstone, and the Cow Run Sandstone are subunits of the 

Conemaugh Group. See Brezinski and Kollar (2011).

201 Screened by monitoring Well No. 9803 towards the base.

202 Docket comments EPA-HQ-RCRA-2009-0640-6314 and EPA-HQ-RCRA-2009-0640-6315.

203 In 1994, seven down-gradient and two up-gradient wells showed alpha contamination ranging from15 to137 

pCi/L. By 2009, 15 of 31 wells had shown consistent alpha activity exceedances between 1994 and 2009.

204 The highest alpha activity (1497 pCi/L) was observed in 2007 in Well No. 9801, down-gradient from Phase C of 

the landfill monitoring the uppermost Shales/Cow Run Sandstone aquifer.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

47

EIP (ibid) also indicates that levels of boron exceeded NPDES permit criteria at Outfall 007 and that the 

levels of aluminum, nickel, and zinc exceeded either acute or chronic exposure water quality criteria. EIP 

(ibid) also notes NPDES permit violations for the landfill and the closed fly ash pond for copper and 

sulfate. Additionally, when laboratory tested, surface water receiving discharge from Outfall 001 and 

Outfall 008 have shown acute toxicity to the aquatic insect Ceriodaphnia dubia with a 100 percent

mortality rate in the discharge water and 50 percent mortality rate in the mixing zone at both outfalls.205

Outfall 008 also showed acute toxicity to the fathead minnow, with a 100 percent mortality rate in the 

discharge water and 15 percent mortality rate in the mixing zone. 

Lemly206 summarizes the ecotoxicology of the scientifically documented ecologic damage that he claims 

to have started in 1974. The last biological effects assessment, in 1996, showed that fish were still being 

poisoned by fly ash effluent. Surface impoundment discharges contaminated streams and increased the 

concentration of cadmium, chromium, copper, lead, zinc, selenium, and arsenic in fish. Selenium 

bioaccumulated in aquatic food chains and in fish tissue up to levels exceeding a toxic threshold.207

Physiological and biological changes indicated that fish were poisoned by fly ash effluent, and that some 

reproductive impairment occurred, although no detailed reproduction studies were conducted to quantify 

the levels of impairment.

OH EPA does not support EIP’s (ibid) conclusion that Gavin Residual Waste Landfill has demonstrated 

an indication of an impact on groundwater quality.208 According to AEP, 209 the SSI at down-gradient 

wells ‘for a few indicator parameters’ are caused by natural groundwater variations, and are not the result 

of a release from the landfill. In addition, several coal mines and oil/gas wells are either within the 

landfill’s footprint or adjacent to the landfill’s and surface impoundments’ footprints. Thus, the 

groundwater was highly degraded for decades. In fact, the fly ash surface impoundment serves to collect 

and treat the surrounding acid mine drainage prior to discharge, thus protecting Stingy Run and Kyger 

Creek from much worse levels of degradation.

Furthermore, landfill groundwater monitoring well No. 94126 is an up-gradient well in the Cow Run 

Sandstone, the uppermost aquifer that extends under the entire landfill, rather than a down-gradient well, 

as claimed in EIP (ibid), hence it does not reflect any impacts from the landfill. Barium levels in well No. 

94126 are very high, up to 13.8 mg/L. Leachate from the landfill that enters permitted ponds 1, 2, and 3, 

has never tested above 0.2 mg/L Barium. Barium levels in monitoring well No. 9801, in the Cow Run 

Sandstone aquifer and ~2000’ down-gradient from well No. 94126, exceed 2 mg/L but are not nearly as 

high as the levels seen in the up-gradient well No. 94126. Therefore, the high barium levels in well No. 

9801 are attributed to up-gradient influences, rather than to a release from the landfill. Concerning surface 

water impacts, according to AEP, all test runs on Outfall 001 (Stingy Run ash fly impoundment) since 

September 2008 have shown no toxicity. There are no NPDES permit toxicity limits applied to Outfall 

008 discharge from landfill leachate treatment pond #2.

 

205 For example, in March 2008, the acute toxicity limit (TUa) values for samples taken from Outfall 001’s effluent 

and the mixing zone were 3.3 and 1.9 respectively (11 and 6.3 times the allowable effluent toxicity limit, 

respectively).

206 Comment to the proposed CCR rule’s docket, EPA-HQ-RCRA-2009-0640-6313: The assessment combines the 

presumed impacts on Kyger Creek by the James Gavin plant in Ohio, with those of the adjacent Stingy Run by the 

John Amos plant in West Virginia. The estimated Monetized damage for the J. Gavin plant alone is $938,000.

207 4ppm whole-body, dry weight.

208 Comments to the proposal’s docket: EPA-HQ-RCRA-2009-0640-8226; and to the 2011 NODA’s docket: EPAHQ-RCRA-2011-0392-0163.

209 EPA-HQ-RCRA-2011-0392-0202.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

48

Evaluation against Proven Damage Criteria210

Other Considerations: In its 2007 Damage Case Assessment Report,211 US EPA rejected the Gavin 

impoundments as damage cases, because the OH EPA “representatives could not confirm the presence of 

any suspected impacts and the State has not undertaken any regulatory action at the site.” In the absence 

of adequate groundwater monitoring in 2001, when the information informing the decision to reject the 

Gavin Impoundments as a damage case was compiled, there was no evidence of damage at this site. 

Resolution: In 1994, AEP switched to a dry ash handling system at the power plant to improve SO2 and 

particle removal from stack emissions. As a result, selenium inputs to Stingy Run and Kyger Creek were 

markedly reduced.

While OH EPA has not taken any enforcement actions, it required assessment monitoring at four onsite 

wells to determine the extent and rate of contamination and to address the contamination.212 In 2009, OH 

EPA increased the plant’s allowable daily maximum concentration for boron such that levels of boron no 

longer exceed the NPDES requirements. In addition, OH EPA has set water quality criteria for Kyger 

Creek for lead, cadmium, nickel, selenium, silver, barium, chromium, zinc, and di-n-butyl phthalate that 

are all much higher for Kyger Creek than for the Ohio River.213

AEP claims214 that its assessment monitoring has produced false statistical positives, suggesting that no 

increases above background levels of waste-derived contaminants have occurred at any monitoring well 

 

210 ICF (2010a).

211 EPA-HQ-RCRA-2006-0796-0015, Case #74, Gavin Impoundments, based on Memorandum from SAIC to 

Dennis Ruddy regarding Revised Identification of New Candidate Damage Cases, December 7, 2001. 

212 According to EIP (2010a), these included Well No. 9801 in 2005 and 2009, Well No. 9803 in 2004 and 2009, 

Well No. 94140 in 1997, 2000, and 2008, and Well No. 9806 in 2005.

213 For example, the Ohio River’s state water quality standards for lead is set at 150 μg/L as a “Maximum for 

Aquatic Life” and 310 μg/L for the “Inside Mixing Zone Maximum” set by the OH EPA. A mixing zone is a 

discreet volume of water in the receiving water in which the more stringent chronic water quality standards typically 

do not apply. In comparison to the Ohio River, OH EPA has set water quality criteria for Kyger Creek that allow a 

maximum lead level in Kyger Creek for aquatic life protection of 710 μg/L and lead levels as high as 1400 μg/L in 

mixing zones in the creek.

214 AEP’s comment to the Oct. 2011 NODA: EPA-HQ-RCRA-2011-0392-0202.

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels (MCLs) or

other health-based standards measured in 

groundwater at sufficient distance from the waste 

management unit to indicate that hazardous 

constituents have migrated to the extent that they 

could cause human health concerns

 Onsite groundwater exceeded primary EPA MCLs for 

arsenic, barium, cadmium, lead, and gross alpha. 

 Onsite groundwater exceeded EPA SMCLs for 

chloride, manganese, and TDS and the EPA Lifetime 

Health Advisory level for molybdenum.

 No offsite groundwater data are available. 

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage 

to human health or the environment (e.g., 

ecological damage)

 Boron exceeded NPDES permit limits at Outfall 007. 

 Aluminum, nickel, and zinc exceeded water quality 

criteria in discharge water at the outfalls.

 Outfall 001 and Outfall 008 showed mortality in 

laboratory toxicity testing. 

Criterion 3: Where there has been an 

administrative ruling or court decision with an 

explicit finding of specific damage to human 

health or the environment

 The OH EPA has required assessment monitoring 

onsite to determine the extent and rate of 

contamination and to address the contamination.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

49

down-gradient of the CCR landfill. This claim enabled AEP to return to a less stringent groundwater 

monitoring program for the site. USWAG claims215 that this site does not qualify as a damage case.

ICF (2010) Rationale: Potential Damage. <Groundwater exceedances of primary and secondary EPA 

MCLs have been found onsite. NPDES permit and water quality criteria exceedances have been reported 

in discharge water but laboratory toxicity testing of indicator species is not a direct indicator of ecological 

damage. The OH EPA required assessment monitoring is not being driven by an administrative ruling or 

court decision that has an explicit finding of specific damage to human health or the environment.>

References

EIP (2010a): In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their 

Environment, Thirty-nine New Damage Cases of Contamination from Improperly Disposed Coal 

Combustion Waste, Case #24, Environmental Integrity Project, EarthJustice and Sierra Club, August 26, 

2010. 

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

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

Appendix C, Case #24. ICF, 10/2010.

EPA (2007): U.S. Environmental Protection Agency (US EPA), Office of Solid Waste. Coal Combustion 

Waste Damage Case Assessments July 9 2007, Case No. 74, Gavin Impoundments. Docket Number 

EPA-HQ-RCRA-2006-0796-0015. Accessed Online May 2012.

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

CHA (2009): Assessment of Dam Safety Coal Combustion Surface Impoundments (Task 3) Final Report, 

American Electric Power General James Gavin Power Plant, Cheshire, Ohio, CHA, September 14, 2009. 

Accessed Online May 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/aep_gavin_final.pdf

AEP (2009): Submission from AEP to Richard Kinch, USEPA, Re: Request for Information under 

CERCLA Section 104(e) for Ash Management Units (March 31, 2009). Accessed Online May 2012.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys/survey-gavin.pdf 

 

215 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0211. “No regulatory enforcement actions 

have been taken by USEPA or Ohio EPA. American Electric Power has been required to conduct groundwater 

assessment monitoring for the landfill under the direction of Ohio EPA. The assessments concluded that increases in 

certain parameters in downgradient wells were a result of natural groundwater variation, not a release from the 

landfill.

This case does not meet the criteria for a damage case because the allegations of surface water impacts are incorrect. 

The USEPA previously rejected this site as a damage case in 2007. The primary focus of alleged damages is 

discharge from the landfill, which is lined with both low permeability clay and a 30‐mil PVC liner; leachate is 

collected and treated prior to discharge through an NPDES regulated outfall. Other surface water discharges are also 

regulated by an NPDES permit. Additional information from the site indicates that acid mine drainage from 

abandoned coal mines around the fly ash pond is captured by the pond and treated prior to discharge (Personal 

communication, American Electric Power. October 26, 2011). All toxicity tests run on the fly ash pond effluent 

since September 2008 have shown no toxicity. Further, the allegations of off‐site groundwater impacts are incorrect. 

There are no off‐site groundwater monitoring wells at the site nor has any off‐site groundwater data been collected 

for analysis (Written communication, American Electric Power. October 25, 2011). There is no documented 

evidence off‐site groundwater data showing exceedances of any MCLs, HAs, HBVs, SMCLs or other groundwater 

standards.”
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

50

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

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

6313, Appendix I, December 15, 2010. Accessed Online May 2012.

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

Brezinski and Kollar (2011): Pennsylvanian Climatic Events and their Congruent Biotic Responses in the 

Central Appalachian Basin, D. Brezinski and A. Kollar. Pages 45-60 in From the Shield to the Sea: 

Geologic Field Trips from the 2011 Joint Meeting of the Geological Society of America North-East and 

North-Central Sections, R. M. Raffolo and C. N. Ciampaglio, editors, GSA Field Guide 20, 2011. 

Accessed Online May 2012.

http://books.google.com/books?id=ELq09RwIiSsC&pg=PA84&dq=morgantown+Sandstone+USGS&hl=

en#v=onepage&q=morgantown%20Sandstone%20USGS&f=false 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

51

PTb41. Muskingum River Plant, American Electric Power (AEP) - Ohio Power Company, 

Beverly, Washington County, OH

Type: Surface Impoundment.

Background and Description: The 1,529 MW nameplate generating capacity Muskingum River Plant 

located in Beverly, Ohio, receives coal combustion residual (CCR) from American Electric Power (AEP) 

d/b/a Ohio Power Company.216 The site consists of four fly ash and bottom ash reservoirs along the 

Muskingum River, which eventually discharges into the Ohio River. Groundwater and seepage water 

have been evaluated onsite; however, no offsite assessment or monitoring has been required. Discharge 

from the ash ponds to the Mill Stone Creek and Muskingum River is authorized under the National 

Pollutant Discharge Elimination System (NPDES).217

The Ash Reservoir Complex consists of four separate, unlined impoundments:218 the Upper Fly Ash 

Reservoir,219 the Middle Fly Ash Reservoir,220 the Lower Fly Ash/Unit 5 Bottom Ash Reservoir,221 and 

the Units 1-4 Bottom Ash Pond.222 Various portions of the CCRs stored in these ponds are routinely 

removed for beneficial use.223 EIP (2010a) only implicates the Upper Fly Ash Reservoir in the 

groundwater impacts.

Washington County lies within the non-glaciated Central hydrogeologic setting. The Ash Pond Complex 

appears to be underlain by inter-bedded Upper Pennsylvanian clay shale, limestone, and sandstone of the 

Monongahela Series. Overlying the predominantly fine-grained bedrock section are residual soils ranging 

in thickness from 0 to over 40 feet, consisting mainly of clay and silty or sandy clay.224

The bedrock aquifer beneath the upper fly ash reservoir is comprised of an upper significant zone of 

saturation overlying a bedrock sandstone aquifer. The significant zone of saturation is comprised of the 

 

216 It comprises five generating units with the following nameplate generating capacities and commissioning dates: 

Unit 1: 220 MW (1953), Unit 2: 220 MW (1954), Unit 3: 238 MW (1957), Unit 4: 238 MW (1958), and Unit 5: 615 

MW (1968). According to AEP (2011), on June 9, 2011, AEP announced that, “based on impending EPA 

regulations as proposed, AEP’s compliance plan would retire Muskingum River Units 1-4 (840 MW) by Dec. 31, 

2014; Muskingum River Unit 5 (600 MW) may be refueled with natural gas with a capacity of 510 MW by Dec. 31, 

2014, depending on regulatory treatment in Ohio.” Note: the actual generation output of the five units is evidently 

somewhat lower than their nameplate generation capacity.

217 The Permit (No. 0IB00003*OD) covers the entire generating facility including 11 discrete outfall locations.

218 According to EIP (2010a), in a 2004 report, AEP claims that Pleistocene soil permeability at the bottom of the 

pond and dam foundation soils: 7.82 x 10-2cm/sec, renders the potential for contaminants to leak from the ash ponds 

into aquifers as ‘low to very low’. However, the cited permeability is over four orders of magnitude higher than the 

standard, containment-recommended permeability value of 1 x 10-7cm/sec.

219 The Upper Fly Ash Reservoir was created by constructing five separate dams and dikes; the Mill Stone Creek, 

No- Name Creek, the Wing (Main and Extension), the Spillway, and the Freeboard Dams. Commissioned in 1975, it 

has a surface area of 69 acre and a storage capacity of 5,250 acre-feet.

220 The Middle Fly Ash Reservoir is impounded by the Middle Reservoir Dam and the Emergency Spillway Dam 

(a.k.a Saddle Dam). Commissioned in 1968, it has a surface area of 27.4 acre and a storage capacity of 1,370 acrefeet.

221 The Lower Fly Ash/Unit 5 Bottom Ash Reservoir, commissioned in 1968, is impounded by the Lower Reservoir 

Dam. It has a surface area of 17.6 acre and a storage capacity of 660 acre-feet.

222 The Units 1-4 Bottom Ash Pond is located north of County Road 32, adjacent to the Muskingum River. The pond 

consists of a northern portion filled with dry dredge spoils, a southern main pond for the storage of bottom ash, and a 

connecting channel between the two areas. Commissioned in the 1950s, it has a surface area of 8 acre and a storage 

capacity of 100 acre-feet.

223 CHA (2010) and AEP (2009).

224 CHA (ibid). 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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Gilboy Sandstone to the base of the Benwood Limestone and is predominantly fractured bedrock. This 

aquifer, referred to as the Shallow Aquifer, is monitored by eight wells of which one is up-gradient. The 

Meigs Creek clay shale serves as a continuous geologic barrier that overlies the Pomeroy/Pittsburg 

sandstone bedrock aquifer. This aquifer, referred to as the Pomeroy Aquifer, is a brackish aquifer with 

total dissolved solids (TDS) values ranging from 11,000 to 29,000 ppm. It is monitored by seven wells.225

Citing AEP’s 2004 report, EIP (ibid) states that seepage from the fly ash pond is expected to form a 

groundwater mound and exhibit a dominant and divergent radial flow through the fractures within the 

bedrock. Preferential flow continues to occur along the abutments and toward the valleys of the unnamed 

tributary or Millstone Creek where it is currently diverted into a collection basin. The direction of 

groundwater flow would be expected to follow a path along the bedrock aquifer underneath the pond to 

the southeast, as well as toward the Muskingum River. To the southwest, seepage from the shallow 

aquifer has been investigated, though impact is assumed to be minimal due to the fine-silty composition 

of the soil. In addition, vertical seepage occurs from the shallow aquifer into the deeper Pomeroy aquifer.

Impact and Damage Claims: EIP (ibid) indicates that levels of barium and gross alpha exceeded the 

primary EPA Maximum Contaminant Level (MCL) in onsite groundwater. Additionally, iron, sulfate, and 

total dissolved solids (TDS) exceeded secondary EPA MCLs (SMCLs) in onsite groundwater.226 The 

down-gradient conductivity in the shallow aquifer ranges from 1,290 to 1,760 μmhos/cm in Well M-9617 

and from 874 to 1,174 μmhos/cm in well OB-2.227

EIP (ibid) also indicates that levels of arsenic, barium, and mercury exceeded primary EPA MCLs in 

seepage from the fly ash reservoir dam. 228 Additionally, sulfate exceeded the EPA SMCLs in seepage 

from the fly ash reservoir dam.229 The similarity of the seepage concentrations to those of the deep 

Pomeroy Aquifer down-gradient of the fly ash pond suggests that contaminants from the shallow aquifer 

have seeped into the deeper Pomeroy Aquifer.230

 

225 EIP (ibid). According to Angle et al., (2002), the inter-bedded ‘dirty’ sandstone, shale, thin limestone, coal, and 

claystone of the Pennsylvanian System comprise the aquifer for the majority of Washington County. These 

consolidated aquifers are poor aquifers and yields are commonly less than 5 gpm.

226 In the shallow aquifer, two monitoring wells (M-9612 and OB-2) south of the disposal site showed primary MCL 

exceedances of alpha particles, with the highest exceedance at 128 pCi/L (8.5 times the MCL) in well M-9612, 

located roughly 350 feet down-gradient from the upper fly ash pond in the shallow aquifer. Well M-9612 also 

exhibits upward trends in concentrations for calcium, magnesium, and sulfate. Well OB-2 is located approximately 

200 feet south of the ash pond and has upward trends in concentrations for barium and total dissolved solids (TDS). 

On-site groundwater monitoring data showed ranges of exceedances of the SMCL for iron (0.3 – 26 mg/L, 1 to 86 

times the SMCL) where exceedances were found in all monitoring wells, and sulfate (250 – 462 mg/L, 1 to 1.8 times 

the SMCL) in four monitoring wells, three of which were found in the shallow aquifer down-gradient of the 

reservoir (AEP, 2008). TDS exceeded the SMCL of 500 mg/L in multiple down-gradient monitoring wells in the 

shallow aquifer with a maximum of 902 mg/L.

227 For comparison, studies of inland fresh waters indicate that streams supporting good mixed fisheries have a 

conductivity range of between 150 and 500 μmhos/cm. The discharge limit for the Ohio River, into which the 

Muskingum flows, is 800 μmhos/cm.

228 The Lower Fly Ash/Unit 5 Bottom Ash Reservoir Dam has had historic stability and seepage issues dating back 

to1969. From October through December 1989, a cutoff wall was constructed within the Lower Reservoir Dam to 

reduce the observed seepage through the portions of the dam that was constructed of boiler slag. According to CHA 

(2010), the cutoff wall is a minimum of 30 inches wide and 1,400 feet long and consists of hardened cementbentonite-fly ash slurry. At the left abutment, the cutoff wall extended through the boiler slag and terminated into 

the underlying clay stratum or at the top of rock. At the right abutment, the cutoff wall extended through a thin layer 

of boiler slag and terminated a minimum of 60 feet below the crest of the dam in the natural granular soils. 

229 ICF (2010a) notes that MCL criteria such as employed by EIP (ibid) are not applicable to surface waters.

230 Data that directly measured concentrations of ash constituents in seepage from the fly ash reservoir dam were 

available from Outfall 002 which discharges to the Muskingum River. The ash pond effluent including this seepage 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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AEP claims231 that the only noted statistically significant increase (SSI) was for alkalinity at one downgradient well (M-9603): no other potential indicator parameters showed SSIs. The SSI for alkalinity has 

been shown to be due to a natural groundwater variation. On July 21, 2011, Ohio EPA confirmed (by 

email) that this parameter can be dropped as an indicator parameter for groundwater contamination. 

Monitoring well OB-2 has been closed and abandoned since 2008. Gross alpha is not reported to the OH 

EPA, and the maximum data point (128 pC/L) mentioned in EIP (ibid) for well M-9612 appears to be a 

statistical outlier.

AEP also claims that considering that the Pomeroy/Pittsburgh sandstone bedrock aquifer is a brackish 

aquifer, with TDS ranging between 2,380 mg/L - 29,200 mg/L, minerals and other constituents dissolve 

out, resulting in TDS values above the SMCL. Subsequently, AEP requested (August 27, 2010) that OH 

EPA modify the indicator parameters to be reported, and report instead on boron, bromide and 

molybdenum as more meaningful indicators for release from fly ash.

Evaluation against Proven Damage Criteria232

Other Considerations

 There are reportedly 70 private drinking water wells within a two mile radius of the fly ash 

reservoir. 

 

is channeled from the fly ash pond dam through a pipeline to Outfall 002 north of the ash pond on the Muskingum 

River. The data on the seepage suggests that the leachate from the pond has arsenic concentrations of 0.031 mg/L 

(3.1 times the MCL), sulfate concentrations of 377 mg/L (exceeds SMCL of 250 mg/L), boron concentrations of 

2.46 mg/L (3.3 times USEPA’s surface water guideline of 0.75 mg/L for long term irrigation for sensitive crops), 

and mercury concentrations of 0.00671 mg/L (3.3 time the MCL and 4.8 times the EPA Water Quality Criteria for 

acute toxicity to aquatic life in freshwater of 0.0014 mg/L) (OH EPA, 2007).

231 AEP Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0202.

232 ICF (2010a).

Criteria Evaluation

Criterion 1: Documented exceedances of primary 

maximum contaminant levels (MCLs) or other healthbased standards measured in groundwater at sufficient 

distance from the waste management unit to indicate 

that hazardous constituents have migrated to the extent 

that they could cause human health concerns

 Onsite groundwater exceeded the primary EPA 

MCLs for barium and gross alpha.

 Onsite groundwater exceeded EPA SMCLs for 

iron, sulfate, and TDS.

 No offsite groundwater data are available.

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage to 

human health or the environment (e.g., ecological 

damage)

 Onsite seepage from the fly ash reservoir dam 

found concentrations of arsenic, barium, mercury, 

and sulfate.

 High conductivity was detected in two onsite 

wells, which exceeded the acceptable range 

suitable for certain species of fish or macro 

invertebrates. 

Criterion 3: Where there has been an administrative 

ruling or court decision with an explicit finding of 

specific damage to human health or the environment

 None
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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 Based on a 2000 study,233 US EPA (2007)234 rejected the Muskingam Plant as a damage case due 

to the lack of evidence of onsite or offsite groundwater exceedances at the time. According to the 

OH EPA, elevated levels of iron and manganese had been detected, first in facility production 

wells, and later, elevated levels of iron, manganese, and TDS were also detected in 

monitoring wells installed around the perimeter of the entire fly ash disposal area following 

the closing and capping of one of the ash ponds. However, according to the OH EPA, the 

“out of range” levels detected were below the relevant secondary MCLs.

Resolution: In 2004, The Ohio Environmental Protection Agency (OH EPA) mandated AEP to 

implement a groundwater monitoring plan and install 15 groundwater monitoring wells, four groundwater 

elevation monitoring wells, and five piezometers at the Upper Fly Ash Reservoir as part of a plan to 

increase the height of the Reservoir’s dam. 

The OH EPA does not support the report’s conclusion that Muskingum River Plant has demonstrated an 

indication of an impact on groundwater quality. 235 There are no administrative ruling or court decisions 

addressing this site. Finally, USWAG claims that this site does not qualify as a damage case.236

ICF (2010) Rationale: Potential Damage. <Groundwater exceedances of primary (barium and gross 

alpha) and secondary MCLs (iron, sulfate, and TDS) have been reported onsite. There has not been any 

assessment of groundwater or surface water offsite and there are no other impact or damage claims. 

Groundwater monitoring is required by the OH EPA; however, these actions are not being driven by an 

administrative ruling or court decision that has an explicit finding of specific damage to human health or 

the environment.>

References

EIP (2010a): In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their 

Environment, Thirty-nine New Damage Cases of Contamination from Improperly Disposed Coal 

Combustion Waste, Case #26, Environmental Integrity Project, EarthJustice and Sierra Club, August 26, 

2010. 

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

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

Appendix C, Case #26. ICF, 10/2010.

US EPA (2007): U.S. Environmental Protection Agency (US EPA), Office of Solid Waste. Coal 

Combustion Waste Damage Case Assessments July 9 2007, Case No. 77, Muskingum River Power Plant 

Impoundments. Docket Number EPA-HQ-RCRA-2006-0796-0015. Accessed Online May 2012.

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

 

233 Memorandum from SAIC to Dennis Ruddy, USEPA, regarding Rationale and Conclusions Regarding 

Commenter-Identified Fossil Fuel Combustion Waste Damage Cases, April 20, 2000. 

234 US EPA (2007).

235 Ohio EPA comment to the proposal’s docket: EPA-HQ-RCRA-2009-0640-8226; and to the 2011 NODA docket: 

EPA-HQ-RCRA-2011-0392-0163.

236 Comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211): “This case does not meet the criteria 

for a damage case because the allegations do not contain any documented evidence of off‐site groundwater 

monitoring data or off‐site groundwater data showing exceedances of specified health‐based criteria. Further, the 

USEPA rejected this site as a damage case in 2007”.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

55

AEP (2009): Submission from AEP to Richard Kinch, USEPA, Re: Request for Information under 

CERCLA Section 104(e) for Ash Management Units (March 31, 2009). Accessed Online December 

2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/survey-musk.pdf. 

CHA (2010): Assessment of Dam Safety Coal Combustion Surface Impoundments (Task 3) Final Report, 

American Electric Muskingum River Power Plant, Waterford, Ohio, CHA, March 23, 2010. Accessed 

Online May 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/aep_musk_final.pdf

AEP (2011): AEP Shares Plan for Compliance with Proposed EPA Regulations, June 9, 2011. Accessed 

Online May 2012.

http://www.aep.com/newsroom/newsreleases/?id=1697

Angle et al., (2002): Ground Water Pollution Potential of Washington County, Ohio. Michael P. Angle, 

Josh Jonak, and Dave Walker. Ground Water Pollution Potential Report No. 55, Ohio Department of 

Natural Resources, Division of Water, Water Resources Section, 2002. Accessed Online December 2012.

http://www.dnr.state.oh.us/Portals/7/gwppmaps/pdf_gismap_wreport/washington_pp_report_wmap.pdf

PTb42. Northeastern Station Ash Landfill, American Electric Power - Public Service 

Company of Oklahoma, Oologah, Rogers County, OK

Type: Landfill and Surface Impoundment.

Background and Description: Northeastern Station237 is located in Oologah, Oklahoma, about 30 

miles northeast of Tulsa. The Station has disposed of coal combustion residual (CCR) from American 

Electric Power (AEP) in an unlined landfill,238 located approximately 75 feet from the Verdigris River. 

Although CCR has been disposed of onsite since 1978, site monitoring did not begin until 2008. 

Groundwater has been evaluated onsite for the landfill; however, no offsite assessment or monitoring has 

been required. There is also a bottom ash impoundment onsite (constructed in 1979) that has become 

subject to groundwater monitoring only recently.239

In the vicinity of the ash landfill there are three lithologic units. From shallow to deeper depth, they are: 

(i) an unconsolidated gravelly clay unit ranging in thickness from almost 30 feet to zero; (ii) Lower 

Pawnee Limestone member of the Pennsylvanian-age Oologah Formation with a thickness ranging from 

five to 43 feet; and (iii) Labette Shale member of the Oologah Formation that lies at depth ranging from 

 

237 According to PRNewswire (September 28, 2000), NES comprises four units, two of which are gas-fired (Unit 1, 

475 MW, online since 1961; and Unit 2, 470 MW, online since 1970) and two are base load, coal-fired (Units 3 and 

4 with a joint generating capacity of 910 MW). According to NewsOK (April 24, 2012), to come into compliance 

with federal rules over haze and mercury emissions, Public Service Co. of Oklahoma will retire the two coal units at 

its Northeastern plant. The proposed agreement with Oklahoma and the USEPA would retire one unit in 2017 and 

install emissions control equipment at a second unit in preparation for retirement by 2025 or 2026.

238 The 65-acre, unlined fly ash landfill southeast of the power station has been in use since coal-fired Units 3 & 4 

started operating in 1978. The fly ash landfill operates under Oklahoma State Department of Health landfill permit 

FA3566010, issued on July 20, 1978.

239 According to AEP (2009), the bottom ash pond, which is located northwest of the landfill, has a surface area of 

69-acre, with an approximate total capacity of 700 acre-feet. The volume currently stored is variable, with ash 

routinely removed for beneficial use. Dewberry & Davis (2011), who address this unlined pond as Northeastern 3 & 

4 Station Bottom Ash Basin, cite different size data: a surface area of 34 acre and total storage capacity of 469 acrefeet. The impoundment is operated under NPDES Permit # OK0034380.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

56

around 33 to 43 feet below ground surface. Although the landfill is located adjacent to the Verdigris 

River, no Quaternary alluvial deposits associated with the river have reportedly been encountered within 

the landfill or power plant property. During the hydrogeologic investigations, perched groundwater in the 

unconsolidated materials was occasionally present, but appeared to be discontinuous across the site.240

Impact and Damage Claims: EIP (2010a) indicates that levels of arsenic, barium, chromium, lead, 

selenium, and thallium exceeded primary EPA Maximum Contaminant Levels (MCLs) in onsite 

groundwater. Additionally, sulfate and pH exceeded secondary EPA MCLs (SMCLs) and vanadium 

exceeded state health-based standards in onsite groundwater. 

Recent monitoring has revealed that groundwater under the Northeastern Station’s unlined coal ash 

landfill is heavily contaminated with plumes of metals spreading in at least three directions. Average 

concentrations of selenium have been measured at 8–10 times the federal MCL in two wells, periodic 

exceedances in three other wells, and a maximum selenium concentration of 1.85 mg/L (37 times the 

federal MCL and 185 times the Oklahoma MCL). Average arsenic concentrations have exceeded the 

MCL in four wells and are more than six times the federal MCL in one well. Average chromium 

concentrations exceed the MCL in one well and periodic concentrations of chromium exceed the MCL in 

two other wells with a maximum concentration more than twice the MCL. Lead has exceeded the federal 

and state MCLs in at least seven wells and measured more than 13 times the MCL (Federal Action Level) 

in one well. Vanadium has been found at nine times state health-based standards in one well and exceeded 

those standards in several other wells. Barium has been found at four times the federal MCL in one well. 

Thallium has exceeded the MCL in two wells. 

A Stilling Basin Public Use Area along the Verdigris River, about quarter of a mile upstream from the 

site, is identified in EIP (ibid) as an alleged at risk population, as is the town of Oologah, which gets its 

water from Lake Oologah, a man-made recreational hub located just up-river from the power plant. 

ODEQ claims, however, that there is no evidence of elevated levels of heavy metals or contamination in 

local public water sources based on Public Service Company testing of well water.

EIP (ibid) contends that the March 2008 installation of four monitoring wells assumed a southeastern 

groundwater flow direction, toward the Verdigris River, and MW1 on the north side of the landfill was 

identified as “up-gradient.” Installation of additional wells indicates that shallow groundwater is flowing 

in all directions from the landfill, and the deeper groundwater is flowing (at least 900 feet) to the northnorthwest. The most significant contaminant plume is moving to the south, toward the Verdigris River. 

Some degree of contamination is also moving southeast of the landfill toward the Verdigris River in the 

vicinity of MW3S, where arsenic has been above MCL in the last three quarterly samplings, and elevated 

chromium, selenium, and average sulfate above the federal EPA’s HALs have been recently measured.

The present monitoring network samples both shallow and deep wells at each location. Despite evidence 

clearly documenting mounding (radial flow outward in all directions from the landfill),241 ODEQ 

continues to designate MW1S and MW1D on the north perimeter of the landfill as up-gradient monitoring 

wells. However, the high pH (average 9.4) and sulfate (average 550 mg/L) and periodic exceedances of 

 

240 The monitoring well network involves nested wells screened in the limestone (designated S for “shallow”) and 

the lower shale unit (designated D for “deep”).

241 In its comment to the proposed Rule’s docket: EPA-HQ-RCRA-2009-0640-8288, ODEQ denies EIP’s (2010a) 

assertion that because ODEQ has not identified a proper upgradient monitoring well for the site, it has failed to 

identify a northward-and northwestward-moving plume of contamination. ODEQ, however, concedes that the 

groundwater regime at AEP is complex, as acknowledged in EIP (2010a). Due to this complexity, ODEQ claims 

that there are no "upgradient" wells in the classic sense. 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

57

MCLs for arsenic, selenium, and thallium in MW1S demonstrate that water in this well has been impacted 

by the landfill. The same is true for MW1D, where average sulfate is very high (798 mg/L), and MCLs 

are periodically exceeded for arsenic, lead and vanadium.

Of the 14 wells installed in the monitoring network that yielded enough water for sampling, 13 have 

exceeded MCLs for at least one parameter. The most severely contaminated wells are MW2S & D, on the 

southernmost tip of the landfill, near the Verdigris River. In response to the Groundwater Report for the 

Second Quarter of 2009, ODEQ sent a letter to AEP (September 28, 2009), which noted that the data fell

short of the required eight rounds for statistical analysis but concluded that due to the relatively high flow 

of groundwater through limestone and the proximity to the river, the plume might have reached the 

Verdigris River. This prompted ODEQ to require further investigation and possible remedial action.

Both ODEQ242 and AEP243 acknowledge elevated concentrations of CCR constituents in contaminated 

groundwater contamination at the site. AEP claims,244 however, that only a localized groundwater flow 

pattern has been developed around the landfill: the current monitoring wells do not provide information 

about the groundwater flow pattern beyond the facility’s property line. In addition, groundwater 

monitoring wells have been proactively installed around the surface impoundment.

Evaluation against Proven Damage Criteria245

Resolution: EIP (ibid) indicates that in September 2007, ODEQ required AEP to establish a 

groundwater monitoring program at the landfill. As a result of this program, ODEQ concluded that due to 

the relatively high flow of groundwater through limestone and the proximity to the river, the plume might 

have reached the Verdigris River. This prompted ODEQ to require further investigation and possible 

remedial action.

In its comment to the proposal’s docket, ODEQ disputes many of the conclusions drawn by EIP (ibid), 

including the implications that federally prohibited open dumping has occurred, that ODEQ is ignoring 

 

242 Comment to the CCR proposed rule’s docket: 

http://www.uswag.org/pdf/2010/CCR%20Comments/OKDEQ11172010.pdf.

243 AEP comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0202.

244 EPA-HQ-RCRA-2011-0392-0202.

245 ICF (2010a).

Criteria Evaluation

Criterion 1: Documented exceedances of primary 

maximum contaminant levels (MCLs) or other healthbased standards measured in groundwater at 

sufficient distance from the waste management unit to 

indicate that hazardous constituents have migrated to 

the extent that they could cause human health 

concerns

 Onsite groundwater exceeded primary EPA MCLs 

for arsenic, barium, chromium, lead, selenium, and 

thallium.

 Onsite groundwater exceeded EPA SMCLs for 

sulfate and pH and state health-based standards for 

vanadium.

 No offsite groundwater data are available. 

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage to 

human health or the environment (e.g., ecological 

damage)

 None

Criterion 3: Where there has been an administrative 

ruling or court decision with an explicit finding of 

specific damage to human health or the environment

 ODEQ required AEP to establish a groundwater 

monitoring program and later required further 

investigation and possible remedial action.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

58

federal law by allowing an illegal CCR disposal site to operate and contaminate drinking water sources, 

and that ODEQ are not adequately addressing contamination that has been identified. When samples from 

the initially-installed four monitoring wells consistently demonstrated high levels of arsenic, selenium, 

and pH, ODEQ required AEP to submit a plan and a schedule to address the apparent release. Over the 

past two years, AEP has installed additional 22 monitoring wells: there are now 26 monitoring wells at 

the power plant, all around the fly ash landfill.246 AEP has also submitted a proposal to construct a slurry 

wall and grout curtain barrier along the length of the landfill facing the Verdigris River, as well as a 

proposal to ensure that rainwater infiltration into the landfill proper is minimized/eliminated.247

ODEQ disputes EIP’s (ibid) assertion that because ODEQ has not identified a proper up-gradient 

monitoring well for the site, it has failed to identify a northward- and northwestward-moving plume of 

contamination. The groundwater regime at AEP is complex, explaining why there are no ‘up-gradient’ 

wells in the classic sense. However, the array of monitoring wells installed at the site is such that an 

evaluation of impacts to groundwater, due to flow of groundwater under the landfill is being made. 

Finally, ODEQ claims that since AEP is in substantial compliance with ODEQ’s groundwater monitoring 

regulations (that are essentially equivalent to the Part 257 standards) AEP is not an open dump.

AEP claims248 that seeps from the embankment just south of the landfill (along the Verdigris River) were 

discovered. During the summer of 2011, a barrier system was installed along the southern edge of the 

landfill to address these seeps. AEP is working with ODEQ to determine the nature and extent of the CCR 

constituent migrations and what corrective measures may be necessary. AEP is designing an intermediate 

liner and leachate collection system for the landfill, to be submitted for ODEQ’s approval. The purpose of 

these measures is to effectively collect and treat leachate generated from the facility, and stop recharge of 

the underlying groundwater from precipitation moving through the CCR.

USWAG claims that this Site does not meet the criteria for a damage case.249

ICF (2010a) Rationale: Potential Damage. <Groundwater exceedances of primary and secondary EPA 

MCLs, as well as state health-based standards have been found onsite. There has not been any assessment 

of groundwater or surface water offsite and there are no other impact or damage claims. AEP is required 

to monitor groundwater quarterly and may be required to remediate the site; however, these actions are 

not being driven by an administrative ruling or court decision that has an explicit finding of specific 

damage to human health or the environment.>

References

EIP (2010a): In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their 

Environment, Thirty-nine New Damage Cases of Contamination from Improperly Disposed Coal 

Combustion Waste, Case #27, Environmental Integrity Project, Earthjustice and Sierra Club, August 26,

2010. 

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

 

246 The Daily Progress (2010).

247 ODEQ comment to the proposed rule’s docket: EPA-HQ-RCRA-2009-0640-08288.

248 EPA-HQ-RCRA-2011-0392-0202.

249 Comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211): “In September 2007, the Oklahoma 

DEQ required the establishment of a groundwater monitoring program. The groundwater monitoring program was 

implemented, and Oklahoma DEQ has required further investigation of the groundwater south of the landfill. This 

case does not meet the criteria for a damage case because the allegations: (1) do not contain any documented 

evidence of off‐site groundwater monitoring data or off‐site groundwater monitoring data showing exceedances of 

specified health‐based criteria; and (2) do not provide evidence of any testing or scientific studies of surface waters 

(i.e., Verdigris River) to support the allegation of ecological damage.”
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

59

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

Appendix C, Case #27. ICF, 10/2010.

AEP (2009): American electric Power Response to a Request for Information under CERCLA Section 

104(e) for Ash Management Units, Northeastern 3 and 4 Plant, March 31, 2009. Accessed Online May 

2012.

http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys/survey-ne.pdf

PRNewswire (September 28, 2000): Northeastern Station Repowering Project Completed, American 

Electric Power Reports. Accessed Online May 2012.

http://www.prnewswire.com/news-releases/northeastern-station-repowering-project-completed-americanelectric-power-reports-72165937.html

NewsOK (April 24, 2012): Proposed settlement would retire coal units at Oologah power plant. Accessed 

Online May 2012.

http://newsok.com/proposed-settlement-would-retire-coal-units-at-oologah-powerplant/article/3669302#ixzz1wGYaoCRm

The Daily Progress (2010): DEQ: Public drinking water in Oologah is safe, September 1, 2010. Accessed 

Online May 2012.

http://claremoreprogress.com/local/x955423905/DEQ-Public-drinking-water-in-Oologah-is-safe

Dewberry & Davis (2011): Coal Combustion Residue Impoundment Round 9 - Dam Assessment Report, 

Northeastern 3 & 4 Station, Bottom Ash Basin, AEP Public Service Company of Oklahoma, Oologah, 

Oklahoma. Dewberry & Davis, LLC, December 2011. Accessed Online December 2012.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/aep-northeastern-3-4-final.pdf

PTb43. Frank R. Phillips Power Plant, Duquesne Light Company, Crescent Township, 

Allegheny County and Hopewell Township, Beaver County, PA

Type: Landfill and Surface Impoundments.

Background and Description: The Phillips Power Plant is located in South Heights, Pennsylvania and 

consists of two unlined ash ponds with capacities of 13.5 and 9 million gallons, as well as a 157-acre 

landfill, about 50-acres of which were used for the disposal of coal ash and stabilized flue gas 

desulfurization sludge (Poz-O-Tec) from 1969 until 1991.250, 251 About 75 percent of the landfill is in 

Allegheny County and 25 percent is in Beaver County. The two ponds were decommissioned in the early 

1990s and the ash reportedly removed from the site. The landfill was decommissioned in the late 1990s. 

The power plant itself was acquired by Duquesne Light Company in late 1990s and fully decommissioned 

 

250 The landfill had a leachate collection system, but there is no information on whether the landfill was lined. 

Considering that CCR disposal reportedly started at the site in 1969 and a solid waste permit for this disposal was 

issued in July, 1975 it is doubtful that effective liners or other hydrologic barriers were even required to isolate the 

coal ash and FGD waste leachates at the site from shallow groundwater.

251 In 1975, the Duquesne Light Company received Solid Waste Disposal Permit No. 300440 from PADEP.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

60

in 2002.252 Groundwater has been evaluated onsite; however, no offsite groundwater data are available. 

Although surface water is present nearby, no data are available.

The Phillips Power Plant and its no-longer active coal ash ponds were sited on Ohio River alluvium and 

overbank-deposits. These are underlain by the Pennsylvanian-Age, mostly continental Glenshaw 

Formation of the lower Conemaugh Group (primarily sandstones, siltstones, and minor limestone and 

coal deposits).253

Impact and Damage Claims: EIP (2010) indicates that levels of aluminum, chloride, fluoride, 

manganese, and total dissolved solids (TDS) exceeded secondary EPA Maximum Contaminant Levels 

(SMCLs) in onsite groundwater.254 EIP (ibid) points out also to exceedances of arsenic in both downgradient groundwater and in down-stream surface water, and of chromium, lead, and selenium in surface 

water.255

EIP (ibid) claims that in the late 1980s, several public supply wells of the municipal water supply 

Cresswell Heights Joint Authority (CHJA) in Beaver County, Pennsylvania, were contaminated with 

elevated levels of TDS (above EPA SMCLs) from the two coal ash ponds at the Phillips Power Plant.256

EIP (ibid) also claims that residences located offsite experienced failure of their hot water heaters and had 

to frequently replace them (e.g., once per year) due to elevated TDS in the groundwater. In the mid1990s, a groundwater assessment of the ash landfill found unanticipated degradation of groundwater.

Pennsylvania Department of Environmental Protection (PADEP) addresses EIP’s (ibid) claims257 by 

concurring about the contamination that impacted the CHJA; PADEP claims, however, that TDS is not a 

 

252 The Plant was located on the south bank of the Ohio River at Routes 51 and 151, in the town of South Heights, 

about 17 miles northwest of Pittsburgh, Pennsylvania and on the border of Allegheny and Beaver counties.

Commissioned in 1943, it was the site of the first flue gas desulfurization scrubber on a utility power plant in the 

U.S. By the 1990s, the heavy steel manufacturing industry, a key customer of the Plant’s power, had all but 

disappeared from the Pittsburgh area and Duquesne Light decided to decommission the plant. Orion Power Midwest 

LP (now: GenOn Energy Inc.) bought the plant from the utility in the 1990s and sold it in 2010 to Phillips Station 

Holding LP. Following the Plant’s demolition in 2011/2012, the current owner intends to develop the 54-acre site 

for commercial and industrial use: http://triblive.com/x/pittsburghtrib/business/s_721066.html#axzz2BZ9N9To0 and 

http://www.globaldemolition.com/news/3.htm.

253 Hutchinson (1995).

254 Note that fluoride actually has a federal MCL (4 mg/L).

255 Based on an additional well monitoring report that became available to EIP subsequently to the EIP (ibid) report, 

there were exceedances of dissolved arsenic at down-gradient monitoring well, MW18, of between six and seven 

times the MCL of 0.010 mg/L in the first quarter of 2001 and more than three times the MCL in the first quarter of 

2004. In all, arsenic appears to have exceeded its MCL at least seven times at MW18 in the period of July, 1993 

through the end of 2007. Concentrations of total arsenic in surface water measured at the Landfill’s downstream 

monitoring point, SW3, are noticeably higher than those concentrations in upstream surface water measured at SW1, 

and their trend is increasing with levels as high as approximately 0.240 mg/L in the first quarter of 2004. (For 

reference, the Pennsylvania Criteria Continuous Concentration, CCC, for the protection of aquatic life from chronic 

toxicity exposure to arsenic is 0.150 mg/L).

256 The first impacts were registered already in June 1979: Data from the CHJA wells collected in 1979 and 1980 

shows that average hardness in contaminated Well No. 5 was 553 mg/L, more than twice as high as average 

hardness in less contaminated Well No. 3 which was 255 mg/L. Average TDS in Well No. 5 was 886 mg/L, 

exceeding the secondary MCL and more than twice as high as average TDS in Well No. 3, which was 380 mg/L. At 

least 18 samples from three contaminated public water supply wells of the CHJA had TDS levels exceeding 1,000 

mg/L in 1979/80 with maximum levels exceeding 1,400 mg/l.

257 Comments to the following dockets: proposed CCR rule: EPA-HQ-RCRA-2009-0640 and the October 2011 

NODA: EPA-HQ-RCRA-2011-0392-201: 

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CB4QFjAA&url=http%3A
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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primary health related drinking water parameter. PADEP also concurs that some of the groundwater was 

impacted by secondary, non-health related constituents such as iron, manganese, fluoride, and chloride; 

however, PADEP claims that in the absence of an upward trend in the last 10 years, it did not require an 

abatement plan. PADEP also claims that the decommissioning of the impoundments was due to closing of 

the power plant rather than due to PADEP’s legal action. PADEP also concurs with EIP’s (ibid) claim 

that groundwater contamination was identified at the landfill at sufficient levels to require the power plant 

to install groundwater monitoring wells and perform a hydro-geological assessment in accordance with 

the 1992 Residual Waste Regulations. As to EIP’s (ibid) claim concerning the detection in 2006-07 of 

groundwater monitoring data discharging from the closed landfill with noticeably higher levels of 

chloride, fluoride, and sodium, and generally higher manganese, aluminum, sulfates, TDS and Specific 

Conductance, PADEP claims that absent information on specific monitoring dates and wells, they cannot 

verify the accuracy of the contamination allegations.

Resolution: In January 1981, PADEP sent a letter to Duquesne Light Company requesting that it 

“immediately initiate a complete hydrogeological study” of the contamination at its ash ponds. This 

request was based on examination of all available data on the groundwater in the proximity to the Phillips 

Power Station, which indicated that the groundwater has been degraded.

PADEP filed a complaint against the Duquesne Light Company for violations of total suspended solids 

(TSS) limits at a NPDES outfall and for adversely impacting the groundwater aquifer used by the public 

drinking water supply wells. A subsequent Consent Order and Agreement (COA) was signed in 

November 1990 which ordered the Duquesne Light Company to stop contamination from the ash pond 

and provided several options for the utility to remediate the source of contamination.258 The COA may 

have contributed to the decision to close the power plant and the associated ponds and landfill. As part of 

the closure/post closure plan for the Landfill (submitted to PADEP in June 1994), PADEP required 

quarterly groundwater monitoring (of wells MW-5 and MW-6) due to evidence of groundwater 

degradation. Closure of the coal ash ponds appears to have addressed problems with the CHJA public 

water supply.

USWAG (2008) rejects the status of this damage case based on a reference to presumably inapprtopriate 

water quality standards.259

 

%2F%2Fwww.governor.state.pa.us%2Fportal%2Fserver.pt%2Fdocument%2F1208309%2Fmtchellphillipssewardfe

rn10-27-11_pdf&ei=-3ZyVLG_G8HyQSzjoG4CQ&usg=AFQjCNHVoOFknSX8FQp5uj0ThlpDElJNig&bvm=bv.80185997,d.aWw

258 The COA gave Duquesne Light the options of upgrading its ash ponds by installing a composite liner with a leak 

detection system or replacing the ponds entirely with an above ground treatment system for the CCR of the Phillips 

Station before the plant could resume operation. Furthermore, the COA mandated that Duquesne commence 

activities to close and reclaim the ponds within 18 months of resuming operations at the Phillips Station if it chose 

not to install the composite liner. The COA also involved a $50,000 civil penalty for discharge violations.

259 USWAG (2008) claims that the comparisons of the groundwater data to Pennsylvania Statewide Health 

Standards of medium specific concentrations (MSCs) for non-residential, used aquifers and USEPA Drinking Water 

Standards are misleading. The groundwater data should be evaluated relative to Pennsylvania's MSCs for nonresidential, non-use aquifers because, among others, there are no current or foreseeable down-gradient groundwater 

users; the current and foreseeable use of the site is industrial; and the area between the lagoons and the Monongahela 

River does not intersect a radius of 1/2 mile from a community water supply or an area designated as a Zone 2 

wellhead protection area as defined in Pennsylvania's Wellhead Protection Program. (Supplementary Information to 

EarthJustice Allegations of Additional CCW Damage Cases, comment to the 2007 NODA docket EPA-HQ-RCRA2006-0796-0468).
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

62

Evaluation against Proven Damage Criteria260

ICF (2010) Rationale: Potential Damage. There are no exceedances of primary EPA MCLs in onsite 

or offsite groundwater; however there are onsite and offsite exceedances of EPA SMCLs. Damage to 

resident’s hot water heaters does not constitute a scientific study that provides documented evidence of 

damage to human health or the environment. While there was a COA issued in 1990, the agreement did 

not have an explicit finding of specific damage to human health or the environment.>

References

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

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #20. Environmental 

Integrity Project and Earthjustice. February 24, 2010.

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

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

Case #20. ICF, 10/2010, Appendix B.

Hutchinson (1995): Pittsburgh Geological Society Golden Anniversary (1945-1995) Field Guide Book. 

Peter J. Hutchinson, Field Trip Coordinator and Editor, 1995. Accessed Online November 2012.

http://www.pittsburghgeologicalsociety.org/out_of_print/1995golden/geology1995.pdf

PTb44. Hunlock Power Station, UGI Development Company, Hunlock Creek, Luzerne 

County, PA

Type: Surface Impoundment.

Background and Description: The Hunlock Power Station is a small power plant (49.9 MW) along the 

Susquehanna River located in Hunlock Creek, Pennsylvania.261 The site operated as a coal- fired 

generating station from the 1920s until May of 2010. Prior to the 1950s ash was not disposed of in a 

 

260 ICF (2010a).

261 The plant is located approximately 10 miles west of Wilkes-Barre, Luzerne County, Pennsylvania.

Criteria Evaluation

Criterion 1: Documented exceedances of primary 

maximum contaminant levels (MCLs) or other healthbased standards measured in groundwater at sufficient 

distance from the waste management unit to indicate 

that hazardous constituents have migrated to the extent 

that they could cause human health concerns

 Onsite groundwater data exceeded the EPA 

SMCLs for aluminum, chloride, fluoride, 

manganese, and TDS.

 Offsite groundwater data exceeded the 

secondary MCL for TDS.

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage to 

human health or the environment (e.g., ecological 

damage)

 Presumably, due to elevated TDS in offsite 

groundwater, resident’s hot water heaters 

were being ruined and had to be replaced 

frequently.

Criterion 3: Where there has been an administrative 

ruling or court decision with an explicit finding of 

specific damage to human health or the environment

 A COA was signed in 1990 providing 

several options to remediate the source of 

contamination and included a $50,000 

penalty for discharge violations.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

63

controlled manner. Upon construction of basins in the early1960s, ash was sluiced from the pulverized 

coal-fired boiler to two storage impoundments and dewatered for removal from the site.262

The two small coal ash basins at the site were still in operation as recently as June 2010: the East Basin 

Impoundment (Basin 003; 4.65 acres, capacity 71,300 cubic yards) and the West Basin Impoundment

(Basin 005; 4.79 acres, capacity 73,500 cubic yards).263, 264 Ash was sluiced from the pulverized coal-fired 

boiler to the two storage impoundments and dewatered for removal from the site. Due to the slurrying 

operations over time, the two units became a single co-managed surface impoundment. There is a natural 

clay unit of unknown thickness underlying the site; however, parts of it have reportedly been excavated, 

and it is possible that ash was placed as much as 8 feet under the water table.265

The facility does not have a solid waste permit but is regulated – as an ash storage impoundment - under 

the Pennsylvania Residual Waste Regulations for storage facilities (Chapter 287.112). Effluent from the 

impoundment outfall is discharged under a NPDES permit (PA0008664) that contains limits for iron, 

manganese, oil and grease, Total Suspended Solids and pH but no limits or monitoring requirements for 

trace metals. Since the Hunlock Station started operation in 1959, most of its CCR has eventually been 

shipped off-site to undisclosed landfills and for placement in Pennsylvania coal mines.

All the eleven, pre-2009 monitoring wells at the Hunlock site are screened in the shallow alluvium, 

measuring groundwater that is moving into the Susquehanna River. Two groundwater flow patterns were 

identified at the site: for the central and western portions of the property, a radial flow towards the 

southeast, south, and west, influenced by the presence of the ash basins (monitoring wells MW-5, MW-6, 

MW-7, and MW-11);266 in the eastern portion of the property, the flow direction is to the south, towards 

the Susquehanna River (MW-8, MW-10). There is no offsite groundwater or surface water monitoring for 

the site; however, PADEP has indicated that no public water supply intakes or private wells are located 

along the Susquehanna River downstream of the facility.

 

262 PADEP comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0201. According to GZA

Geoenvironmental (2012, narrative and Figures 1-5), Ash Basins 003 (East Basin) and 005 (West Basin), separated 

by a common dike, were constructed for the purpose of storing CCR and discharging plant waste water. Based on 

review of the existing data and the fact that some form of ash disposal has been ongoing at the site since 1924, it 

appears that portions of the Basin were built of and/or over previously placed ash. The basins were dredged 

regularly, approximately every two years, and the ash obtained was temporarily stored on-site (for drying purposes) 

and later disposed of legally off-site. In conjunction with the construction of a new gas fired power plant at the site, 

UGI plans to permanently decommission the East and West Basins by removing CCRs within the impoundments 

(approximately 288,000 ton) followed by breaching of the Ash Basin embankments and subsequent re-grading of 

the site to provide positive drainage.

In 2011, UGID was repowering the Hunlock power plant, by replacing the No. 6 coal-fired boiler with a 

combined cycle plant consisting of two Combustion Turbine generators and two Heat Recovery Steam generators. 

(Units 1 and 2 were retired in place in 1975; Unit 3, a coal-fired steam electric unit, began commercial operation in 

September 1959. Unit 4 is fully owned and operated by Allegheny Energy).

263 UGI (2010) and UGID response letter to EPA/OECA’s ICR, June 21, 2010.

264 UGI’s self-reported capacity data are inconsistent with actual ash contents data as presumably reported to EIP 

and cited in their February 2010 report: 204,400 cubic yards of fly ash and 154,500 cubic yards of bottom ash.

265 To limit seepage, a five-foot-thick impermeable liner was constructed from on-site clay excavated during the 

construction of the East and West Basins. This liner extends from the heel to the crest of the inside face of the 

embankment, but there are no liners on the Basins’ bottoms.

266 The existence of groundwater mounding is based, among others, on manganese measured next to the coal storage 

area in up-gradient monitoring well MW-9 at levels as high as 13.0 mg/L (September 2009).
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

64

Impact and Damage Claims: EIP (2010) indicates that levels of arsenic have exceeded the primary 

EPA Maximum Contaminant Level (MCL) in onsite groundwater for at least 10 years. Additionally, 

levels of iron and manganese exceeded EPA SMCLs in onsite groundwater.

EIP (2010) claims that groundwater contamination discharges from the impoundment to the Susquehanna 

River, and may contribute to arsenic loading in surface waters down-stream. One of the onsite monitoring 

wells that is located approximately 240 feet down-gradient of the waste boundary and near the 

Susquehanna River has consistently had arsenic concentrations exceeding primary EPA MCLs since 

samples were first taken from the well in April 2009. Additionally, effluent discharge samples from the 

impoundment’s Outfall 005 to the Susquehanna River contained arsenic. And while the concentrations of 

arsenic were below surface water quality standards that protect aquatic life, the large flow - 1,500 gallons 

per minute - authorized/permitted from the outfall could also contribute to arsenic loading in the river. 

Finally, concentrations of barium, boron, and lithium are also noticeably higher down-gradient of the ash 

impoundment than at up-gradient monitoring points although none are exceeding any health based 

standards.

Groundwater Assessment Report from December 2008 indicated that maximum arsenic, as well as iron 

and manganese levels were exceeded in several wells.267 Of the 130 soil samples obtained from 

impoundment No. 003, the SHS268 for selenium (26ppm) was exceeded in three samples (B-136, SB-076, 

and SB-080), reaching 55.2ppm; and seven samples exceeded the SHS for arsenic. The dewatering of 

impoundment No. 003 (started in April 2009) resulted generally in decreased well levels of arsenic and 

iron (maximum: 70μg/L and 35ppm, respectively), but in increased manganese (maximum: 23ppm). The 

April and May 2009 groundwater samplings of MW-7 and MW-11 indicate dissolved arsenic levels 

above SHS. However, since the dewatering of impoundment No. 003, the groundwater elevations in MW5, MW-6, MW-7, and MW-11 have decreased from April 2009 to May 2009, as have the dissolved 

arsenic levels. The April and May 2009 groundwater samplings of MW-13 and MW-14, down gradient of 

the impoundments and closest to the Susquehanna River and the Basin Discharge Channel and influenced 

by them, yielded arsenic below SHS. 

PADEP states269 that since September 2007, data show both total and dissolved arsenic in four downgradient wells exceeding the MCL, with an average of 29μg/L and 26μg/L, respectively. However, two 

of the four wells have levels that fluctuate above and below the MCL.270 This fluctuation is expected to 

continue at least until closure has been completed. PADEP concedes with the exceedances of iron and 

manganese; as to noticeably higher barium, boron, and lithium levels down-gradient of the impoundment 

than at up-gradient monitoring points, PADEP claims none have exceeded any health-based standards. 

PADEP also claims that down-gradient pH values, 6.0 to 7.0, are on average higher by 1 unit from those 

up-gradient; and it concedes with EIP’s (2010) claim that the average alkalinity at down-gradient wells is 

about twice that measured at up-gradient wells.

 

267 UGID’s response to EPA/OECA June 2010 ICR, Appendix J: Groundwater Assessment Report.pdf, 8/21/2009, 

and Response to PADEP Letter 3.29.10 Addendum 2 to GW Assessment.pdf. This Report summarized two rounds 

of groundwater sampling in the second half of 2008 in the 30, newly installed wells, as well as the 4 pre-existing 

wells. Arsenic levels (a maximum of 148μg/L in MW-6, July 2008 data; also, elevated in MW-7 and MW-11), were 

well over the State Health Standard (SHS: 10μg/L); similarly, the SHS levels for iron and manganese (300μg/L), 

were exceeded: iron, 28.1ppm in B-014; and manganese, 16.6ppm in B-007.

268 Pennsylvania’s Statewide Health Standards: 25 Pa. Code §§250.301 to 250.312: 

http://www.pacode.com/secure/data/025/chapter250/subchapctoc.html.

269 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0201.

270 PADEP also believes that the excessive total arsenic concentration in MW-5 is a reflection of turbidity created by 

sample collection techniques. The facility, in cooperation with PADEP, upgraded sampling equipment and 

techniques in mid-2007 through mid-2009 to improve sampling protocols. In MW-5, the average concentration of 

dissolved arsenic is 5.6 μg/L (MCL = 10 μg/L) and total arsenic is 22.82 μg/L. 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

65

USWAG claims271 that this site does not meet the criteria for a damage case.

Evaluation against Proven Damage Criteria272

Resolution: A groundwater monitoring program was first established in July 1997, involving installation 

of four monitoring wells (MW-4, MW-5, MW-6 and MW-7). MW-4, the up-gradient-monitoring well, is 

located at the northwestern corner of the property. The three other, down-gradient monitoring wells were 

installed along the strip of land between the impoundments and the Susquehanna River, on the 

southwestern border of the property.

On January 10, 2008, pursuant to 25 Pa. Code Chapters 299.144(a)(5) & 289.266, PADEP ordered 

groundwater assessment to delineate the source and extent of contamination. Seven additional monitoring 

wells were installed to sample groundwater as part of this assessment starting in April 2009. An 

additional assessment well was installed in early 2010. As of early in 2010, PADEP was assessing 

monitoring data to determine the adequacy of the well network to fully determine groundwater impacts in 

order to determine the scope of abatement necessary under closure.

As of May 2010, following a switch from the coal-fired unit to a propane system, UGI Development 

Company (UGID, a subsidiary of UGI Energy Services) no longer operates a coal-fired electric 

generating facility in Hunlock, including all the associated disposal activities. The closure plan includes 

 

271 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0211. “This case does not meet the criteria for 

a damage case because the allegations are only for on‐site groundwater. The information provided for the Site does 

not contain any documented evidence of off‐site groundwater monitoring data or off‐site groundwater monitoring 

data showing exceedances of specified health‐based criteria. The only water sample data reported in the Reference 

Document were samples collected at an outfall from the ash storage impoundment, which is regulated by an NPDES 

Permit.”

272 ICF (2010a).

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels (MCLs) or 

other health-based standards measured in 

groundwater at sufficient distance from the waste 

management unit to indicate that hazardous 

constituents have migrated to the extent that they 

could cause human health concerns

 Onsite groundwater data exceeded the primary EPA 

MCL for arsenic.

 Onsite groundwater data exceeded the EPA SMCLs 

for iron and manganese.

 No offsite groundwater data are available.

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage 

to human health or the environment (e.g., 

ecological damage)

 Contaminated groundwater discharge to the 

Susquehanna River and effluent discharge from the 

impoundment may have caused arsenic loading 

downstream of the impoundment; however, no surface 

water data from the Susquehanna River are available 

to support this claim.

Criterion 3: Where there has been an 

administrative ruling or court decision with an 

explicit finding of specific damage to human 

health or the environment

 In January 2008, PADEP ordered UGI Development 

Company to conduct a groundwater assessment of the 

site to delineate the source and extent of 

contamination.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

66

the removal of coal ash and a grading plan with stormwater controls that will limit or prevent surface 

water run-on and limit stormwater infiltration into the closed basin.273

As clean closure has been ongoing, PADEP claims PADEP claims:

274 (i) with the stoppage of sluicing 

(May 2010) and the beginning of ash removal as part of closure, the groundwater monitoring system 

detected changes to water quality with each of these steps: while arsenic, iron and manganese 

concentrations remain elevated, decreasing concentrations of arsenic and iron have been noted.275 (ii) 

There are no groundwater drinking water supplies in the vicinity of the facility, and (iii) the level of 

contamination does not pose a significant threat to the River, or warrant immediate corrective action other 

than site closure and continued monitoring of the ash basins.

ICF (2010) Rationale: Potential Damage. <Ground water exceedances of the primary EPA MCL for 

arsenic have been found on site. The EIP/EJ February 2010 Report claims that the site may have caused 

arsenic loading to the Susquehanna River; however no data are available to support the claim and there is 

no scientific study available that explicitly documents evidence of damage to human health or the 

environment. The groundwater assessment and monitoring performed by UGI Development Company is 

not being driven by an administrative ruling or court decision that has an explicit finding of specific

damage to human health or the environment.>

References

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

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #23. Environmental 

Integrity Project and Earthjustice. February 24, 2010.

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

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

Case #23. ICF, 10/2010, Appendix B.

Comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0201): Commonwealth of 

Pennsylvania Department of Environmental Protection Northeast Region Review of the Environmental 

Integrity Project and Earthjustice Report: Out of Control: Mounting Damages From Coal Ash Waste Sites 

Thirty-one New Damage Cases of Contamination From Improperly Disposed Coal Combustion Waste 

Sites, February 24, 2010: UGI Hunlock Power Station, RRI Energy, Inc., Portland Generating Station. 

October 25, 2011. Accessed Online November 2012.

http://files.dep.state.pa.us/AboutDEP/AboutDEPPortalFiles/RemarksAndTestimonies/CoalAsh/EIPreport

NEPAfacilities11_10-24.pdf

UGI (2010): Response to EPA/OSWER ICR letter, September 1, 2010. Accessed Online April 2012.

http://www.epa.gov/wastes/nonhaz/industrial/special/fossil/surveys/hunlock-pwr-sta.pdf 

 

273 According to GZA Environmental (ibid), in May 2011 UGI, in cooperation with the PADEP Division of Waste 

Management, was in the process of removing all CCRs from the East and West Basins via excavation and loading 

into trucks for off-site disposal. According to UGI, the CCRs are being legally disposed of in a regulated mine 

reclamation facility. UGI submitted a Draft Closure Plan for approval by PADEP Division of Waste Management in 

June 2011; based on the CCR removal rate, UGI indicated they anticipate obtaining official permanent closure status 

for the basins within approximately two years from the date of GZA’s assessment visit (i.e., in mid-2013).

274 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0201.

275For example, since cessation of sluicing coal ash in May 2010, the average concentration of dissolved arsenic in 

MW-5 is 3.6 μg/L and total arsenic is 8.25 μg/L.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

67

GZA Geoenvironmental (2012): Final Report, Round 10 Dam Assessment, UGI Development Company, 

Hunlock Creek Power Station Ash Basin 003 (East Basin) & Ash Basin 005 (West Basin), Hunlock 

creek, Pennsylvania, GZA Geoenvironmental, Inc., Norwood , Massachusetts, August 17, 2012. Accessed 

Online January 2014.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/ugi_hunlock_final.pdf

PTb45. Mitchell Power Station, Allegheny Energy,276 Courtney, Washington County, PA

Type: Landfill and Wastewater Lagoons/Surface Impoundments.

Background and Description: The Mitchell Power Station site, fueled with sub-bituminous coal, is 

located in Courtney, Pennsylvania, approximately 20 miles south of Pittsburgh and next to the 

Monongahela River.277 The power station operates a 70-acre unlined CCR landfill with a capacity of 5.6 

million cubic yards. The site also has two wastewater treatment lagoons which cover jointly about one 

acre, and are constructed with concrete sides and a compacted soil base that is covered with one foot of 

bottom ash.278

The landfill is used for a mix of fly ash and bottom ash, while the lagoons are for process wastewater and 

discharge.279 Allegheny Power began groundwater investigations at the site in 1998. Groundwater has 

been evaluated onsite; however, no offsite groundwater data are available. Surface water has not been 

evaluated onsite or offsite, although the Monongahela River is nearby. 

The ash landfill is sited over mostly bedded Pennsylvanian-Age sedimentary rocks of the Pittsburgh 

Formation of the Monongahela Group (the Uniontown Sandstone and the Benwood Limestone Members:

alternating sandstone, freshwater limestone and shale with thin soil) 280, 281, 282 and some Monongahela 

 

276 In February 2011, Allegheny Energy was acquired by FirstEnergy:

https://www.firstenergycorp.com/newsroom/news_releases/firstenergyalleghenyenergymergercloseseffectivetoday.html

277 Established in 1963, it has a fuel-fired generation capacity (Unit-3) of 299 MW. Mitchell Units 1&2 are oil-fired 

and used infrequently. Unit-3 has a wet lime FGD scrubber. Citing the cost of environmental compliance and a weak 

market for electricity, FirstEnergy announced July 9, 2013 that the company's southwest Pennsylvania Mitchell

power station has been scheduled for closure, subject to a review for possible grid reliability implications (Grounded 

2013). FirstEnergy Corp. deactivated the Mitchell Power Station at the end of 2013, citing low demand and market 

prices for electricity and the cost of retrofitting it to meet federal mercury emission regulations that go into effect in 

2015 (Herald Standard, 2013).

278 EarthJustice comment to the docket: EPA-HQ-RCRA-2009-0640-6314.

279 They are regulated under NPDES permit #PA0002895. Allegheney Energy (2010).

280 Influence of Geology on Post-mining Water Quality, North Appalachian Basin (1998).

281 Evans (2003).

282 According to Thompson (2012), the Pennsylvanian units are characterized by a distinctive cyclicity or repetition 

in the sequence of lithologies that compose them, forming cyclothems. A single cycle begins with a rapid shift from 

terrestrial conditions towards marine or near shore conditions in response to rising sea level followed by a gradual 

shift to terrestrial conditions as sea level falls and sediments fill in the space created by the rise in sea level. The 

resulting package of sediments will exhibit a general shift to more terrestrial deposits beginning with marine 

sediments (offshore limestone, shale, siltstone) or near shore and terrestrial deposits of sandstone (beach and stream 

channel), siltstone and shale (floodplain, swamp, and lake), limestone (lake), often culminating in a layer of 

underclay (ancient soil) and coal. Because the environments that produce these deposits were spatially-limited and 

constantly shifting laterally, the individual beds are of limited lateral continuity and thickness (bed thickness ranges 

from less than 1 foot to more than 10 feet).
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

68

River alluvium with overbank deposits. The ash lagoons are sited over a Monongahela River alluvium 

with overbank deposits.

The Mitchell Station FGD Disposal Area has a total of 12 groundwater monitoring wells: five up-gradient 

and seven down-gradient. These wells monitor three groundwater zones: a fractured rock rind which 

transcends lithologies, the Uniontown Sandstone, and the Benwood Limestone. The Mitchell Station 

Lagoon Area has a total of six groundwater monitoring wells: two up-gradient and four down-gradient. 

The wells monitor Lagoons No. 1 and 2 at the Station. The Mitchell Station Mingo (Closed) Disposal 

Area has a total of 13 groundwater monitoring wells: five up-gradient and eight down-gradient. The wells 

monitor two groundwater zones: a fractured zone and the Benwood Limestone.283

Impact and Damage Claims: EIP (2010) states that in 1998, an evaluation of groundwater in the 

vicinity of two CCR residual waste storage impoundments found down-gradient degradation of 

groundwater by arsenic above primary MCLs and boron above EPA‘s Child Health Advisory standard. A 

review of quarterly groundwater monitoring data for the year 2007 shows that levels of arsenic and boron 

were up to twice as high as found in the initial evaluation in 1998. Elevated levels of molybdenum, 

nickel, and manganese were also reportedly detected in some down-gradient monitoring wells.

PADEP responds to EIP’s (2010) allegations as follows: (i) in the absence of well locations and dates for 

the alleged exceedances, review of the data indicates no upward trend in arsenic or boron levels recorded 

between 1996 and 2010, and the facility has remained in compliance regarding molybdenum and nickel, 

as well as for the other parameters. (ii) The elevated levels of iron and manganese and the ‘sporadic low 

levels’ of arsenic and boron are caused by to Acid Mine Drainage (AMD), created by past mining of the 

Pittsburgh Coal Seam up-gradient of the site. PADEP cites somewhat elevated levels of arsenic in upgradient monitoring wells as a supporting argument.284 Furthermore, PADEP claims that all groundwater 

data is evaluated relative to Pennsylvania Statewide Health Standards of MSCs for non-residential, nonuse aquifers according to the 25 Pa. Code Chapter 250 Land Recycling Regulations as required by 

applicable law.285 PADEP concedes that there have been elevated secondary parameters and occasionally, 

low levels of some primary constituents, but claims that no trends have been established. 

USWAG, while conceding the concentration data, rejects the allegations raised by Earthjustice286 and by 

EIP (2010), claiming that (i) “this is an industrial area with no current or foreseeable down-gradient 

groundwater users. Except for the reference to arsenic concentrations, which Earthjustice concedes were 

detected both up-gradient and down-gradient from the site, all the other constituents detected down-

 

283 AEM 06115_GW Monitoring Description, in Allegheny Energy’s response to OECA’s ICR, Question 11, 2010. 

The Pennsylvanian Age Benwood limestone of Monongahela group is divided into several parts by intervening units 

of sandstones, shale, and a coal and black shale horizon.

284 Comments to the following dockets: proposed CCR rule: EPA-HQ-RCRA-2009-0640 and the October 2011 

NODA: EPA-HQ-RCRA-2011-0392-201: 

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CB4QFjAA&url=http%3A

%2F%2Fwww.governor.state.pa.us%2Fportal%2Fserver.pt%2Fdocument%2F1208309%2Fmtchellphillipssewardfe

rn10-27-11_pdf&ei=-3ZyVLG_G8HyQSzjoG4CQ&usg=AFQjCNHVoOFknSX8FQp5uj0ThlpDElJNig&bvm=bv.80185997,d.aWw.

285 The Statewide health-standards are concentrations of regulated substances associated with a specific 

environmental medium, and are designated as the MSCs (medium-specific concentrations). These can vary by up to 

four orders of magnitude. For recent inorganic MSCs, see:

http://files.dep.state.pa.us/LocalGovt/OCRLGS/LocalGovtPortalFiles/SWH%20Tables%202011/Table%202%2020

11.pdf. 

286 Earthjustice comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0464, submitted to the docket on 

February 11, 2008.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

69

gradient are not primary drinking water constituents;”287 and (ii) based on the contention that the 

allegations are only for on‐site groundwater and surface water.288

A cursory review of selected five-year groundwater monitoring well records (2005-2009)289 upholds 

EIP’s (2010) claims about exceedances of arsenic, boron, iron, manganese, as well as other constituents. 

In addition, a recent assessment by an EPA-hired consultant concluded that the USGS-established 

regional groundwater flow data coupled with the observation that groundwater directly beneath the 

unlined lagoons contains elevated arsenic demonstrate that the contamination’s source is the power 

station’s landfills and wastewater treatment areas, rather than up-gradient coal mining legacy.

Based on four quarterly monitoring reports in 2006 and 2007 and the groundwater evaluation of 1998 at 

Mitchell, as well as pond water composition data, it can be inferred that ash/FGD waste lagoons rather 

than coal mining AMD have contaminated down-gradient monitoring wells, and to a lesser degree - upgradient monitoring wells at the coal ash/FGD waste lagoons. This conclusion is based on two lines of 

evidence: (i) comparing the contaminants’ up-gradient and down-gradient pattern to demonstrate upgradient groundwater mounding;290 and (ii) sampling data of a ditch that has been a conveyor of 

abandoned coal mining drainage.291

 

287 USWAG Comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796 -0446.3. Specifically: the 

comparison to Pennsylvania’s Health Standards of medium-specific concentrations (MSCs) for non-residential, user 

aquifers and EPA Drinking Water Standards is misleading - the groundwater data should be evaluated relative to 

Pennsylvania’s MSCs for non-residential, non-use aquifers because:

(i) The zones samples exhibit poor water yielding capacity; (ii) there are no current of foreseeable down-gradient 

groundwater users; (iii) the current and foreseeable use of the site is industrial; (iv) the down-gradient property is 

connected to a community water system for its supply of potable water, and (v) the area between the lagoons and the 

Monongahela river does not intersect a radius of 1/2 mile from a community water supply or an area designated as a 

Zone 2 wellhead protection area as defined in Pennsylvania’s Wellhead Protection Program. In addition, USWAG 

states that PADEP did not require corrective action; and that a groundwater monitoring program was implemented 

in the third quarter of 1999 with results submitted to PADEP on a quarterly basis.

288

 USWAG Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0211: this case does not meet the 

criteria for a damage case because the allegations are only for on‐site groundwater and surface water. The 

information provided for the site does not contain any documented evidence of off‐site groundwater monitoring data 

or off‐site groundwater monitoring data showing exceedances of specified health‐based criteria.”

289 Groundwater monitoring well records (2005-2009) provided by Allegheny Energy to EPA/OECA in response to 

Question 11 of an 2010 Information Collection Request (ICR). 

290 The chemical signatures of boron, arsenic, pH, alkalinity and TDS at an up-gradient well (MW4U) as compared 

to down-gradient well (MW5D) around lagoon No. 2 are invoked to suggest groundwater mounding rather than 

AMD as the prevailing cause. Comparison of molybdenum concentrations in the up-gradient vs. down-gradient 

groundwater monitoring wells of Lagoons No. 1 and No. 2 for the data available to EIP from the background 

sampling of 1997 and 1998 and the four quarters of monitoring in 2006 and 2007 demonstrates that the average 

concentration of molybdenum at down-gradient wells is 14.98 μg/L, whereas the average concentration at upgradient wells is 1.61 μg/L. The corresponding difference between down-gradient well values for nickel (9.75 μg/L) 

and average up-gradient concentrations (7.96 μg/L) is less conclusive.

291 The sampling was performed in February 1999, about one year following the leachate-lagoon sampling data in 

EIP’s possession. That ditch runs in a north-south direction along railroad tracks to the west of the leachate lagoons. 

The maximum total and dissolved concentrations of arsenic, barium, boron, lead, molybdenum, nickel, selenium, 

zinc, alkalinity, TDS, sulfate, chloride, and total and dissolved concentrations of non-trace metals such as calcium, 

magnesium and potassium from this ditch, all were substantially lower than the maximum dissolved concentrations 

in the groundwater monitoring wells around the CCR leachate lagoons. 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

70

Evaluation against Proven Damage Criteria292

Other Considerations: Permit No. 300809 for the Mitchell Power Station CCB Landfill was reissued 

on March 28, 2002 with a change of ownership and modification of the Waste Acceptance Plan to allow 

acceptance of fly ash and bottom ash from Hatfield's Ferry Power Station. It was renewed August 2008.

Resolution: There are no current administrative rulings or court decisions associated with the site. In 

2001, PADEP issued a NOV for failure to minimize fugitive dust emissions from a landfill northwest of 

the Station. Once the Station improved its dust suppression methods, monitoring requirements for fugitive 

dust emissions were discontinued in 2004.

Commenters to the docket293 note that high arsenic levels and inconsistencies in the quality of the ash 

from the Mitchell Station (a low permeability cementitious, FGD material) used in the reclamation of the 

LaBelle, Pennsylvania minefill site prompted PADEP to revoke the beneficial use certification in April 

2008, following an earlier (2000) letter from PADEP that documents an arsenic issue.294 Apparently, this 

revocation was removed at a later date and the LaBelle site keeps accepting CCRs from the Mitchell 

Plant.295

 

292 ICF (2010a).

293 G. Kuklish and co-signers, addressing a CCR minefill site at Labelle, Greene County, Luzerne Township, 

Pennsylvania: EPA-HQ-RCRA-2009-0640-8243, to where the CCR is hauled by barge on the Monongahela River.

294 The PADEP 2008 letter states (emphasis added): “We have reviewed your submittal dated March 28, 2008, for 

Mitchell Station. This source is not approved for use at mine sites and has not been approved for several years. This 

source still cannot be approved because it has a pH value that is too low to meet beneficial use guidelines. We only 

accept ash with a pH between 7 and 12.5. The ash from the Mitchell Station has not been consistent in quality. For 

these reasons, former ash certification approval CA021 is cancelled.”

295 According to:

http://www.environmentalintegrity.org/news_reports/documents/LabelleNoticeLetter20130313.pdf, in 2010 and 

2011, the facility received 114,266 tons and 114,751 of “ash” from the Mitchell Station, respectively.

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels (MCLs) or 

other health-based standards measured in 

groundwater at sufficient distance from the waste 

management unit to indicate that hazardous 

constituents have migrated to the extent that they 

could cause human health concerns

 Onsite groundwater data exceeded the primary EPA 

MCL for arsenic, and the EPA Child Health Advisory 

for boron.

 No offsite groundwater data are available.

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage 

to human health or the environment (e.g., 

ecological damage)

 None

Criterion 3: Where there has been an 

administrative ruling or court decision with an 

explicit finding of specific damage to human 

health or the environment

 In 2001, the Pennsylvania Department of 

Environmental Protection (PADEP) issued a Notice of 

Violation (NOV) to Allegheny Power for failure to 

minimize fugitive dust emissions from the landfill. 

Monitoring requirements for fugitive dust emissions 

were discontinued in 2004.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

71

ICF (2010) Rationale: Potential Damage. <Groundwater exceedances of the primary EPA MCL for 

arsenic have been found on site. PADEP issued an NOV in 2001 related to fugitive dusts, however the 

monitoring requirements were discontinued in 2004. There are no current administrative rulings or court 

decisions associated with the site.>

References

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

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #19. Environmental 

Integrity Project and Earthjustice. February 24, 2010.

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

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

Case #19. ICF, 10/2010, Appendix B.

Influence of Geology on Postmining Water Quality: Northern Appalachian Basin, Part 2. In Coal Mine 

Drainage Prediction and Pollution Prevention in Pennsylvania, Pennsylvania Department of 

Environmental Protection (PADEP), October 1998. Accessed Online April 2012.

http://www.dep.state.pa.us/dep/deputate/minres/districts/cmdp/ack.html (No longer accessible).

http://wvmdtaskforce.com/proceedings/00/PBrady.PDF (Outline only)

Evans (2003): Pennsylvanian System, Monongahela Group (General Stratigraphy for the Pennsylvanian 

Monongahela Group of Southwestern Pennsylvania.), Pittsburgh Area Geologic Sites, Mark A. Evans, 

September 22, 2003. Accessed Online November 2012.

http://www.geology2.pitt.edu/GeoSites/monongahela_group.htm

Thompson (2012): A Summary of the Groundwater Resources of the Wayne National Forest (Ohio), Troy 

Thompson, Eastern Region Regional Hydrogeologist, U.S. Forest Service White Paper, August 15, 2012. 

Accessed Online November 2012.

http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5387929.pdf

Allegheny Energy (2010): Response to a Cercla 104(e) information Request Letter, Allegheney Energy 

Supply Company, LLC, Mitchell Power Station, Cortney, Pennsylvania, September 7, 2010. Accessed 

Online November 2012.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys/allegheny-energy-mitchell.pdf

Grounded (2013): FirstEnergy: Hatfield's Ferry similar to Harrison, but too expensive to run. Grounded, 

A State Journal Energy Blog, July 9, 2013, Updated: August 8, 2013. Accessed Online August 2014.

http://www.statejournal.com/story/22794765/firstenergy-hatfields-ferry-similar-to-harrison-but-tooexpensive-to-run

Herald Standard (2013): Hatfield's Ferry Power Station quietly closes for good. Herald Standard, October 

20, 2013, Updated: Dec 30, 2013. Accessed Online August 2014.

http://www.heraldstandard.com/new_today/hatfield-s-ferry-power-station-quietly-closes-forgood/article_cd0133e1-9adb-58c2-8f8d-66769de34835.html
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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PTb46. Portland Generating Station's Bangor Quarry Ash Disposal Site, RRI Energy, 

Inc.,296 Bangor, Upper Mount Bethel Township, Bangor Borough, Northampton County, 

PA

Type: Offsite Landfill in an Abandoned Slate Quarry.

Background and Description: The Portland Generating Station's297 Bangor Quarry Ash Disposal Site 

is an off-site landfill298 constructed in the late 1980s in an abandoned slate quarry located in Bangor, 

Pennsylvania and lined first time in 1999.299 The wastes disposed of in the landfill include fly ash, bottom 

ash, and “Trona Test Ash” which is ash produced during a Pennsylvania Department of Environmental 

Protection (PADEP)-approved trial burn at the Portland Generating Station utilizing the injection of a 

substance intended to reduce air emissions. Leachate from above the liner drains into an ash leachate 

pond where it is drained into an open channel and then into Brushy Meadow Creek, if it meets acceptable 

criteria following analysis. The site also has a stormwater sedimentation pond. Both ponds discharge 

under NPDES permitted outfalls. Groundwater has been evaluated onsite; however, no offsite 

groundwater data are available. Surface water has been evaluated offsite at Brushy Meadow Creek. 

Impact and Damage Claims: EIP (2010) indicates that primary EPA Maximum Contaminant Levels 

(MCLs) have been exceeded although there are no constituents mentioned or data given to support this 

claim. EPA SMCLs, however, have been exceeded for aluminum, fluoride,300 iron, manganese, sulfate, 

and total dissolved solids (TDS). The report also indicates that increasing trends were found for a number 

of constituents (including arsenic, boron, potassium, and others) in down-gradient wells, but there is no 

mention of exceedances of criteria or standards for these constituents.301

 

296 Formerly, Reliant Energy, Inc. As of December 3, 2010, RRI Energy, Inc., merged with Mirant Corporation to 

form the Houston, Texas based GenOn Energy, Inc.

297 Units and in-Service Dates: 172 MW (1958), 255 MW (1962). On February 29, 2012, GenOn Energy Inc. 

announced plans to close the Portland Generating Station in January 2015, rather than bring the Plant into 

compliance with federal regulations, mandating reduction of sulfur-dioxide emissions by 81% and of mercury – by 

91% by the end of October 2014: http://www.lehighvalleylive.com/slatebelt/index.ssf/2012/03/portland_generating_stations_a.html. EPA’s ruling was in response to a 2010 lawsuit by the 

state of New Jersey after research showed that the plant’s air pollution that blows over state lines is causing 

nonattainment of National Ambient Air Quality Standards (NAAQS) for SO2 and particulate matter (PM) problems 

to Warren and Sussex counties.

298 According to Express-Times/Lehigh Valley News (2009), the coal ash is trucked from the plant to the 15-acres 

quarry, which is south of Route 512 between the boroughs of Bangor and East Bangor. According to RRI 

spokesperson, about 900,000 cubic yards of dry coal ash were placed in the landfill before a synthetic liner was 

added on top of the coal ash in 1999. Since then, as of May 2009, an additional 512,000 cubic yards of coal ash have 

been added above the synthetic liner. 

For information on the Slate Belt of eastern Pennsylvania, see:

http://pabook.libraries.psu.edu/palitmap/SlateBelt.html. According to Drake and Epstein (1967), the slate belongs to 

the thickly-bedded, Late Ordovician Pen Argyl Member of the Martinsburg Formation, that in the Bangor area 

comprises a fault-transported and highly folded rock sliver consisting of alternating mica-rich and graphite/pyrite 

rich, rhythmically intercalated rocks.

299 The liner comprises (from the base layer upwards) a leachate detection zone, a composite liner consisting of a 6” 

fly ash sub-base overlain by a 60 millimeter-thick geosynthetic clay liner, and a leachate collection zone.

300 Fluoride has actually a federal MCL (4 mg/L).

301 Results from GAI Consultants‘ trend analysis of data collected after July 1, 1995 and prior to January 1, 2007 

state: “Upward trends for dissolved arsenic, dissolved boron, and dissolved potassium and downward trends for pH 

(field) and pH (lab) are unique to down-gradient monitoring wells and may be the result of actions occurring at 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

73

EIP (ibid) also indicates that Unpermitted discharges of boron, cadmium, hexavalent chromium, and 

selenium from Outfalls 001 and 002 to Brushy Meadow Creek302 in samples analyzed in October and 

November 2006, respectively, have exceeded Pennsylvania’s Water Quality standard for the protection of 

aquatic life from pollutant concentrations that are chronically toxic (Criteria Continuous Concentration or 

CCC).303

Finally, EIP (ibid) claims that ash that has been dumped at the landfill, specifically the trona ash (or test 

ash), has been more toxic than permitted by regulations. Two of the nine composite samples collected of 

the trona ash had concentrations of leachable arsenic that exceeded Pennsylvania Class II landfill 

limits.304

In summary, exceedances of Pennsylvania’s MCLs in groundwater on-site have occurred in 2001, 2002, 

2005, and 2006, with an upward trend detected between 1995 and 2006. Exceedances of Pennsylvania’s 

CCC were documented in unpermitted discharges to surface waters in 2006.

PADEP limits its response to EIP’s (ibid) claims by addressing only groundwater and discharge water 

data collected between 2003 and 2009:305 (i) PADEP’s review of the 2003-2009 groundwater data and 

split sampling data suggests the groundwater has been impacted for the following parameters: manganese 

and sulfate exceed their secondary drinking water standards (SDWR) of 50 μg/L and 250 μg/L, 

respectively, in all monitoring wells including the up-gradient wells; arsenic has never exceeded the EPA 

MCL of 10 μg/L; and lead and selenium are well below their corresponding MCLs. (ii) The GAI 

Consultants’ 2006 report cited in EIP (ibid) suggests an upward trend for pH and sodium at both upgradient and down-gradient wells. However, the GAI report further suggests, and PADEP concurs, that 

the upward trend is due to seasonal variation and is not attributed to the ash disposal at the facility. The 

reported upward trend for sulfate in the up-gradient wells indicates that the ash disposal facility is not 

impacting the down-gradient wells as these do not show an upward trend. The upward trends for pH, 

dissolved arsenic, and dissolved boron do indicate an impact in down-gradient monitoring wells. 

However, none of these concentrations exceed the MCLs. (iii) PADEP’s review of the 2003-2009 surface 

water data indicates the concentrations of boron and selenium are already elevated in the up-gradient 

surface water sample that is located above the Bangor Ash Disposal Site facility boundary, and that their 

levels in the up-gradient, intermediate-gradient and down-gradient wells are quite similar.306 (iv) 

 

Bangor. At down-gradient monitoring wells there are three parameters, dissolved arsenic, dissolved barium, and pH 

(field and lab), with a drinking water standard and an upward trend. Monitoring well BMW-6D exceeded in pH 

(field and lab) during the last quarter of 2006. These exceedances have occurred before in the years 2001 through 

2002.”

302 Outfall 001 receives wastewater from the Stormwater Ash Leachate Pond; Outfall 002 receives wastewater from 

the Stormwater Sedimentation Pond, which flows from the ash site.

303 Outfall 001: Boron was measured at 8.6 mg/L (more than 54 times the Pennsylvania CCC of 1.6 mg/L). 

Cadmium was measured at 1 μg/L, exceeding the Pennsylvania CCC of 0.64 μg/L (adjusted for a hardness of 400). 

Hexavalent chromium was measured at 11 μg/L, exceeding the Pennsylvania CCC of 10 μg/L. Selenium was 

measured at 41.3 μg/L, almost nine times the Pennsylvania CCC of 4.6 μg/L (adjusted for a hardness of 400). 

Outfall 002: Boron was measured at 1.780 mg/L, exceeding the Pennsylvania CCC of 1.6 mg/L. Cadmium was 

measured at 1 μg/L, exceeding the Pennsylvania CCC of 0.64 μg/L (adjusted for a hardness of 400). Selenium was 

measured at 10 μg/L, exceeding the Pennsylvania CCC of 4.6 μg/L by more than twice.

304 A letter from RRI to PADEP in 2007 reports that of nine composite samples of trona ash disposed of at this site, 

two samples exhibited high levels of leachable arsenic in excess of Pennsylvania Class II landfill limits. 

Specifically, the Class II landfill limit for leachable arsenic is 0.5 mg/L; however, leach test results measured arsenic 

at 1.61 mg/L and 2.02 mg/L.

305 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0201.

306 There are a total of seven monitoring wells around the disposal area: two up-gradient wells (BMW-7 & BMW-4) 

and five down-gradient wells (BMW-3D, BMW-6S, BMW-6D, fill run-off Leachate, and BMW-2D). In addition, 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

74

PADEP’s review of the surface water data indicates the concentration of boron, cadmium, hexavalent 

chromium, and selenium is already found to be elevated in the up-gradient surface water sample that is 

located above the Bangor Ash Disposal Site facility boundary; (v) The maximum concentration of a 

contaminant, based on chemical analysis for its leachate for a Class II Residual Waste landfill is x50 the 

waste classification standard for that contaminant (§288.523(a)(1)). For arsenic, the Class II limit would 

be 2.5 mg/L. None of the trona ash samples exceeded this limit. (vi) There are three Public Water Supply 

Wells that are less than a mile from the Ash Disposal Facility. However, all three wells are up-gradient 

from the Ash Disposal Area and none is affected by the ash disposal site.

RRI addresses EIP’s (ibid) claims as follows:307 (i) the allegations that groundwater in down-gradient 

wells at the landfill exceed primary MCLs are a false statement; (ii) concerning the 2007 RRI letter to 

PADEP, reporting that of nine composite samples of trona ash disposed of at the site, two samples 

exhibited levels of arsenic leachate that exceeded those of Pennsylvania’s Class II landfill limits by 

several fold, the allegations disregarded a more comprehensive and representative sampling campaign 

performed by the power plant, where arsenic values were well below (7-11%) the cited standard. (iii) The 

two public water wells located 3/4 mile away from the power plant that serve about 98 individuals are not 

an issue, because there have not been any exceedances of primary drinking water standards, and the 

residential locations are not hydraulically down-gradient of the site. (iv) As to the unpermitted discharges 

of boron, cadmium and selenium into Brushy Meadow Creek from Outfall 002, there are no permit limits 

stipulated for these parameters. (v) Concerning the allegedly unpermitted discharges of boron, cadmium, 

hexavalent chromium, and selenium into Brushy Meadow Creek from Outfall 001 that exceed the 

Pennsylvania CCC in samples analyzed in October 2006, the CCC is not an end of the pipe standard, but 

rather a standard used in modeling of allowable downstream levels of a pollutant to determine what 

permit limits are necessary in an NPDES permit.

USWAG claims that this site does not meet the criteria for a damage case.308

Evaluation against Proven Damage Criteria309

 

there are three surface water sampling points (SWMP-A (up-gradient), SWMP-B (intermediate), and SWMP-C 

(down-gradient).

307 RRI Energy, Inc.: http://www.uswag.org/pdf/2010/CCR%20Comments/RRI11192010.pdf, Pp. 37-47; also, 

comment EPA-HQ-RCRA-2009-0640-9274.

308 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0211. Citing a November 2, 2011 written 

communication from GenOn, USWAG claims that “this case does not meet the criteria for a damage case because 

the allegations are only for on‐site groundwater. The information provided for the site does not contain any 

documented evidence of off‐site groundwater monitoring data or off‐site groundwater monitoring data showing 

exceedances of specified health‐based criteria. In addition, there has never been an exceedance of any Federal MCL 

in groundwater at this site. The only water sample data reported in the Reference Document were samples collected 

from outfalls from the ash storage impoundment, which are regulated by an NPDES Permit.”

309 ICF (2010a).

Criteria Evaluation

Criterion 1: Documented exceedances of primary 

maximum contaminant levels (MCLs) or other healthbased standards measured in groundwater at sufficient 

distance from the waste management unit to indicate 

that hazardous constituents have migrated to the extent 

that they could cause human health concerns

 Onsite groundwater data exceeded EPA SMCLs 

for aluminum, fluoride, iron, manganese, sulfate, 

and TDS.

 No offsite groundwater data are available.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

75

Resolution: PADEP justifies its lack of regulatory action by claiming310 that (i) surface discharges are 

regulated through a NPDES permit, and Reliant has not been in violation of their permit; (ii) The abovereferenced exceedances are for Secondary Drinking Water Regulations (SWDR) that set non-mandatory 

water quality standards for 15 contaminants. These are established only as guidelines to assist public 

water systems in managing their drinking water for aesthetic considerations, such as taste, color and odor. 

These contaminants are not considered to present a risk to human health at the SMCL, and exceedances 

do not require regulatory action. The exceedances in the surface water are also present in the up-gradient 

surface water sample. Unless demonstrated that the intermediate and down-gradient surface water 

samples show change in parameter concentration that are indicative of impact from the site, no action 

would be initiated against the facility; (iii) based upon groundwater and surface water monitoring data, 

the facility is not leaching constituents from the disposal site and is currently not required to perform 

groundwater assessment or abatement activities.

ICF (2010) Rationale: Potential Damage. <There are no documented exceedances of primary EPA 

MCLs in onsite or offsite groundwater; however there are onsite exceedances of EPA SMCLs. While 

there are exceedances of Pennsylvania WQC in effluent discharge from the site, there is no scientific 

study that links the exceedances to evidence of damage to human health or the environment. There are no 

regulatory corrective actions, administrative rulings, or court decisions associated with the site.>

References

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

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #24. Environmental 

Integrity Project and Earthjustice. February 24, 2010.

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

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

Appendix B, Case #24. ICF, 10/2010.

Comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0201): Commonwealth of 

Pennsylvania Department of Environmental Protection Northeast Region Review of the Environmental 

Integrity Project and Earthjustice Report: Out of Control: Mounting Damages From Coal Ash Waste Sites 

Thirty-one New Damage Cases of Contamination From Improperly Disposed Coal Combustion Waste 

Sites, February 24, 2010: UGI Hunlock Power Station, RRI Energy, Inc., Portland Generating Station. 

October 25, 2011. Accessed Online April 2012.

http://files.dep.state.pa.us/AboutDEP/AboutDEPPortalFiles/RemarksAndTestimonies/CoalAsh/EIPreport

NEPAfacilities11_10-24.pdf

Express-Times/Lehigh Valley News (2009): Environmental group says Slate Belt coal-ash dump 

inadequately protecting against groundwater contamination. Lehigh Valley News, May 11, 2009.

Accessed Online April 2012.

 

310 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0201.

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage to 

human health or the environment (e.g., ecological 

damage)

 Boron, cadmium, hexavalent chromium, and 

selenium exceeded Pennsylvania’s WQC in 

effluent discharge into Brushy Meadow Creek 

from both outfalls at the site.

Criterion 3: Where there has been an administrative 

ruling or court decision with an explicit finding of 

specific damage to human health or the environment

 None
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

76

http://www.lehighvalleylive.com/news/index.ssf?/base/news-0/1242014772267260.xml&coll=3

Drake and Epstein (1967): The Martinsburg Formation (Middle and Upper Ordovician) in the Delaware 

Valley-New Jersey. A. A. Drake and J. B. Epstein, Contributions to Stratigraphy, U.S. Geologic Survey 

Bulletin 1244-H, 1967. Accessed Online April 2012. 

http://pubs.usgs.gov/bul/1244h/report.pdf

PTb47. Seward Generating Station,311 RRI Energy, Inc. (Formerly Reliant Energy, Inc.), 

New Florence, Indiana County, PA

Type: Coal Refuse and Ash Pit and Closed Piles.

Background and Description: Coal ash has been disposed of at the Seward Generating Station in New 

Florence, Pennsylvania (some 80 miles east of Pittsburgh near Johnstown, Pennsylvania) since 1954. 

Disposal went unpermitted for many years and was not contained in either landfills or impoundments. 

There are two previously closed unlined ash disposal sites (No. 1 and No. 2), as well as an unlined codisposed coal ash and coal refuse pit which is no longer active. The Seward Generating Station, a 

fluidized bed combustion (FBC) plant that burns about 3.5 million tons of waste coal annually, was 

rebuilt in 2004 over the co-disposed coal ash and coal refuse pit (formerly, a deep coal mining was 

operated from the site). 

The site’s uppermost sediments comprise (in descending order) silt loam, sandy loam, and gravelly, sandy 

loam. As of 1999, the water table over most of the site varied between 4 to 19 feet below the natural 

ground. The saturated thickness of the alluvial aquifer was approximately 12 feet near the adjacent 

Conemaugh River and up to 20 feet near the railroad tracks at the up-gradient, west side of the site. The 

water table gradient averaged two percent with groundwater flow generally perpendicular to the river. 

Groundwater has been evaluated onsite; however, no offsite groundwater data are available. Several 

reports confirm that groundwater at the site discharges directly to the Conemaugh River. Pollutants from 

the No. 1 ash disposal site have leached into groundwater. As recently as 2006, the remedial investigation 

report found that, in some areas on-site, the upper portion of the water table is within ash. Surface water 

has been evaluated offsite in the Conemaugh River.

The Pennsylvania Department of Environmental Protection (PADEP) has entered into numerous Consent 

Order and Agreements (COAs) with RRI and its predecessors since at least 1982 to force remediation of 

groundwater contamination from the coal ash piles as well as surface water contamination from Outfall 

012, yet the contamination persists. 

Impact and Damage Claims: EIP (2010) indicates that groundwater monitoring data have exceeded 

primary and secondary EPA Maximum Contaminant Levels (MCLs) since at least 2004. In onsite 

groundwater, levels of antimony, arsenic, cadmium, chromium, lead, and selenium exceeded their 

 

311 According to GenOn Energy, the current owner: http://www.genon.com/company/stations/seward.aspx, operating 

since the early 1920s as a pulverized coal fired power plant that was retired at the end of 2003, Seward was 

redesigned to burn waste coal in 2004. The 525-megawatt Seward station is the largest waste coal-fired generating 

station in the world. See also: http://www.bizjournals.com/houston/stories/2004/10/11/newscolumn1.html?page=all
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

77

primary EPA MCLs.312 Additionally, aluminum, chloride, iron, manganese, nickel, sulfate, zinc, and TDS 

exceeded secondary MCLs in onsite groundwater. 

EIP (2010) also indicates that aluminum, nickel, and zinc exceeded at least 27 times Pennsylvania’s 

Water Quality Criteria (WQC) for Fish and Aquatic Life in surface water downstream of the ash sites 

in the Conemaugh River. EIP (2010) also claims that aluminum, iron, manganese, and pH have exceeded 

NPDES permit limits in the effluent discharge from the coal ash/coal refuse pile (Outfall 012) into the 

Conemaugh River monthly for the past five years. 

PADEP, in its comment to the docket,313 concurs with the statements about EIP’s (ibid) findings. 

However, PADEP claims that all the reported contamination (including NPDES exceedances in Outfall 

012) is the legacy of the original Seward Power Point Station that has been demolished; and that based on 

a Consent Order (CO) with PADEP, the coal refuse piles associated with the old power plant were mixed 

with (FBC) alkaline ash, compacted in 18 layers, and used for the foundation of the newly constructed 

Co-Gen plant. Groundwater modeling by a consultant calculated it would take 50-100 years for the 

complete remediation of the groundwater to occur. PADEP also claims that the only elevated parameters 

detected in the groundwater wells around the permitted fly ash sites No. 1 and 2 have been iron, 

manganese, and other secondary and non-health related constituents; and that none of the contamination 

is associated with the closed ash sites No. 1 and No. 2.

USWAG claims314 that this site does not meet the definition of a damage case. 

Evaluation against Proven Damage Criteria315

 

312 According to EIP (ibid), groundwater levels of antimony consistently exceeded the primary MCL of 0.006 mg/L, 

including a concentration of 0.1 mg/L (nearly 17 times the standard) at monitoring well MW-7 in the third quarter of 

2008. Cadmium exceeded the primary MCL of 0.005 mg/L at four different monitoring wells, MW-5R, MW-6R, 

MW-7, and MW-8R, including a MW-7R reading of 0.041 mg/L, over eight times the standard, in the second 

quarter of 2009.

313 PADEP comment to the following dockets: proposed CCR rule: EPA-HQ-RCRA-2009-0640 and the October 

2011 NODA: EPA-HQ-RCRA-2011-0392-201: 

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CB4QFjAA&url=http%3A

%2F%2Fwww.governor.state.pa.us%2Fportal%2Fserver.pt%2Fdocument%2F1208309%2Fmtchellphillipssewardfe

rn10-27-11_pdf&ei=-3ZyVLG_G8HyQSzjoG4CQ&usg=AFQjCNHVoOFknSX8FQp5uj0ThlpDElJNig&bvm=bv.80185997,d.aWw.

314 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0211. “The allegations have been investigated 

by PADEP and rejected. The allegations do not contain any documented evidence of off‐site groundwater 

monitoring data or off‐site groundwater monitoring data showing exceedances of specified health‐based criteria1. 

The allegations of off‐site groundwater impact are based on exceedances of non‐health based parameters, 

specifically Total Dissolved Solids.”

315 ICF (2010a).

Criteria Evaluation

Criterion 1: Documented 

exceedances of primary maximum 

contaminant levels (MCLs) or other 

health-based standards measured in 

groundwater at sufficient distance 

from the waste management unit to 

indicate that hazardous constituents 

 Onsite groundwater data exceeded primary EPA MCLs for 

antimony, arsenic, cadmium, chromium, lead, and selenium.

 Onsite groundwater data exceeded secondary EPAMCLs for 

aluminum, chloride, iron, manganese, nickel, sulfate, zinc, and 

TDS.

 No offsite groundwater data are available. 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

78

Other Considerations

 Coal refuse had been co-managed at the site after 2004.

 Consent orders primarily involved correction of NPDES discharge exceedances of iron, 

aluminum, manganese, pH, temperature, and TDS. PADEP recently revised the NPDES 

permitting levels indicating no likely environmental damage.

Resolution: A 1982 Consent Order and Agreement (COA) ordered closure of No. 1 ash site and 

cessation of ash disposal at Seward, and imposed $308,000 fine for violations of Solid Waste 

Management Act. A COA was issued in 2000 for capping No. 1 ash site. In 2001, a Notice of Intent was 

issued to remediate site, including deed restriction prohibiting the use of groundwater from the site due to 

health-related exposure risk; and several COAs to cease discharging from coal ash/coal refuse pit.

In its comment to the docket,316 RRI repeats arguments raised by PADEP in response to the same 

allegations. It emphasizes that the original station was demolished and a new station built on the site. As 

part of the permitting process for the new station, RRI entered into a COA in 2000 with PADEP's Water 

Quality and Environmental Clean Up programs to remediate several old coal-refuse piles on site. In 

addition, RRI presents further details about a 2005 consultant’s study and its follow up, a July 2010 

report. The latter concluded that in 2009 and 2010, a large reduction in acidity has occurred in reference 

to 2003-2004 and prior years (in MW-7R and MW-6R), and the estimated flux of acidity into the 

Conemaugh River is about 10 percent of the pre-remediation value. RRI claims that all the groundwater 

data referenced in EIP (ibid) are from the former coal refuse sites and not from the former coal ash sites, 

that have been closed under the COA. No coal ash is being disposed at the site, and there were no primary 

MCL exceedances in the wells monitoring groundwater around sites No. 1 and No. 2.

In addition, RRI claims that CCR from FBC of waste coal has never been co-disposed with coal refuse at 

the site. The coal ash was actually purchased from two nearby FBC stations, because its high alkalinity 

 

316 RRI Energy, Inc.: http://www.uswag.org/pdf/2010/CCR%20Comments/RRI11192010.pdf, Pp. 37-47; also, EPAHQ-RCRA-2009-0640-9274.

have migrated to the extent that they 

could cause human health concerns

Criterion 2: Where a scientific study 

provides documented evidence of 

another type of damage to human 

health or the environment (e.g., 

ecological damage)

 Aluminum, nickel, and zinc exceeded Pennsylvania WQC for 

Fish and Aquatic Life in the Conemaugh River downstream of 

the ash sites.

 Aluminum, iron, manganese, and pH exceeded NPDES permit 

limits in effluent water discharge into the Conemaugh River 

offsite for the past five years.

Criterion 3: Where there has been an 

administrative ruling or court 

decision with an explicit finding of 

specific damage to human health or 

the environment

 A 1982 Consent Order and Agreement (COA) between the 

Pennsylvania Department of Environmental Protection (PADEP) 

and RRI Energy ordered the closure of the No. 1 ash site, 

cessation of ash disposal at Seward, and a $308,000 fine for 

violations of the Solid Waste Management Act.

 A 2000 COA was issued by PADEP and resulted in capping of 

the No. 1 ash site with three feet of flowable fill. RRI filed its 

Notice of Intent in November 2001 to remediate the site, 

which included placing a deed restriction on the property to 

prohibit future use of groundwater for human consumption or 

other human exposure.

 RRI has reportedly been subject to several COAs to cease 

discharging pollutants from Outfall 012.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

79

could neutralize the acidic coal refuse that was present at the site from previous mining operations, and 

the compacted ash has a lower permeability than the refuse, thereby reducing infiltration.

In response to allegations that RRI has discharged pollutants in excess of permit limits for iron, 

manganese, aluminum, and pH from Outfall 012 on a monthly basis for the past five years, and that a 

surface water monitoring point downstream has recorded at least 27 exceedances of Pennsylvania’s Water 

Quality Criteria Continuous Concentration for Fish and Aquatic Life (CCCs) in the last 5 years for 

aluminum, nickel and zinc, RRI says that this is an inappropriate application of the CCC. The CCC is 

used in modeling of allowable downstream levels of pollutant to determine what permit limits are 

necessary in an NPDES permit. They are not end of pipe limits, but rather apply in stream after the 

assimilative capacity of the stream is taken into consideration. Acute (or maximum) criteria applies afte a 

15 minute mixing period and the chronic (or continuous) criteria applies after 12 hours of mixing in the 

receiving stream, not at the end of pipe discharge. RRI also claims that it was not clear from where the 

012 discharge originated, other than to establish that it was located in the area where the former coal 

refuse pile was remediated; and that the permit limits had been superseded by the COA. 

Finally, RRI claims that the plant requested in 2000, 2003, and again in 2009 to collect the seep (Outfall 

012) and pump it to the plant. As soon as approved, the power plant began pumping the seep to the 

wastewater basin (July 2010) and Outfall 012 was permanently capped.

On May 24, 2010, due to serious concerns about toxic pollution created by coal ash and coal refuse 

disposal and power generation activities at the Seward Generating Station, four environmental groups317

announced that they intend to sue RRI Energy, Inc., RRI Energy Mid-Atlantic Power Holdings, LLC, and 

Reliant Energy Seward, LLC for approximately 12,000 violations of the federal Clean Water Act, the 

Pennsylvania Clean Streams Law, and the federal Resource Conservation and Recovery Act. The 

environmental groups maintain that RRI is violating the said Acts by failing to comply with the terms of 

its permit and by illegally discharging toxic pollutants directly, and into the groundwater flowing directly, 

into the Conemaugh River. The Seward plant had mixed coal ash with the coal refuse piles that were 

plaguing the river with acid mine drainage to remediate the pollution; however, the plaintiffs claim that 

the continuing discharge of pollutants shows this effort to have been unsuccessful. The Seward facility is 

also discharging heated water from its cooling tower in amounts that are causing greater than allowed 

impacts on the river. The heavy metals and other coal refuse and coal ash pollutants being released from 

the Seward facility pose a variety of serious threats to the environment, especially to aquatic life. 

The plaintiffs claim that PADEP classifies the Conemaugh River as a warm water fishery and has placed 

the river on the Commonwealth’s list of “impaired” water bodies due to pervasive contamination from 

metals (specifically aluminum, iron, and manganese), pH, turbidity, and total suspended solids. The 

Conemaugh River has a long history of degradation, much of it caused by acid mine drainage from longabandoned coal mines.318, 319 Before the case could be brought to court, GenOn (then RRI Energy) and 

 

317 The plaintiffs comprise Citizens for Pennsylvania’s Future (PennFuture), Defenders of Wildlife, 

PennEnvironment, and Sierra Club. The Environmental Integrity Project and the National Environmental Law 

Center are acting as co-counsel for the four groups, which are required by the water pollution and waste disposal 

laws to provide 60 and 90 days, respectively notice to the violator and to government agencies before filing suit in

federal court in Pittsburgh.

318 EIP (May 2010a) and EIP (May 2010b).

319 RRI is also being sued by PennEnvironment and the Sierra Club for persistent violations of the federal Clean 

Water Act and the Pennsylvania Clean Streams Law at its 1,711-MW Conemaugh Generating Station in West 

Wheatfield, Indiana County, just downstream of the Seward facility: http://www.citizenscoalcouncil.org/wpcontent/uploads/2012/07/PA-Troubled-Waters-2007-Final-State.pdf. That suit was filed in 2007. A Federal judge 

found GenOn liable for more than 8,600 violations of the Clean Water Act since 2005 that polluted the Conemaugh 

River with metal discharges, which could lead to a maximum civil penalty of more than $300 million. This lawsuit 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

80

PADEP worked out a new permit that addressed the specified violations. The NPDES Permit allots the 

company four years to identify and eliminate -- either by collecting and removing, or treating and seeking 

permits - for all of the illegal seeps from its coal refuse and coal ash pile into the Conemaugh River.” 320

ICF (2010) Rationale: Potential Damage. <Ground water exceedances of the primary EPA MCLs for 

antimony, arsenic, cadmium, chromium, lead, and selenium have been found on site. While surface water 

samples down-gradient of the ash site have exceeded Pennsylvania WQC, there is no risk assessment or 

scientific study available that explicitly documents evidence of damage to human health or the 

environment. Consent orders do not indicate explicit findings of specific damage.>

References

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

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #21. Environmental 

Integrity Project and Earthjustice. February 24, 2010.

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

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

Case #21. ICF, 10/2010, Appendix B.

PADEP (2010, 2011): Pennsylvania Department of Environmental Protection, Southwest Region (2010);

Review of Environmental Integrity Project and Earthjustice Report: Out of Control, dated February 24, 

2010, for the Sites: Mitchell Power Station, Seward Generating Station, Phillips Station/Landfill, Fern 

Valley Disposal Site. October 13, 2010, Revised October 27, 2011. Accessed Online April 2012.

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CB4QFjAA&ur

l=http%3A%2F%2Fwww.governor.state.pa.us%2Fportal%2Fserver.pt%2Fdocument%2F1208309%2Fmt

chellphillipssewardfern10-27-11_pdf&ei=-3ZyVLG_G8HyQSzjoG4CQ&usg=AFQjCNHVoOFknSX8FQp5uj0ThlpDElJNig&bvm=bv.80185997,d.aWw

EIP (May 2010a): Four Environment Groups Announce Intent to Sue RRI Energy for 12,000 Pollution 

Violations at Coal-Fired Seward Power Plant: Supposed “Clean Coal” Plant in Western Pennsylvania 

Illegally Discharging Toxic Pollutants into Conemaugh River, May 24, 2010. Accessed Online November 

2012.

http://www.environmentalintegrity.org/news_reports/documents/FINAL052410SewardNOINewsRelease.

pdf

EIP (May 2010 b): Notice of Violation and Notice of Intent to Sue RRI Energy, Inc., RRI Energy MidAtlantic Power Holdings, LLC, and Reliant Energy Seward, LLC for Violation of the Clean Water Act,

the Clean Streams Law, and the Resource Conservation and Recovery Act at Seward generating Station in 

New Florence, Pennsylvania. May 21, 2010. Accessed Online November 2012.

http://www.environmentalintegrity.org/news_reports/documents/FINALSignedSewardNoticeLetter_000.

pdf

EIP (July 2010): Lawsuit Threat Results in Cleanup of River, but no Fines for Longtime Violator:

Last-Minute Deal with DEP Saves RRI Energy from Citizen Enforcement Suit, Lets Company off 

Without Paying Penalty for Thousands of Violations, July 2010. Accessed Online November 2012.

 

was then settled in June 2011, with GenOn agreeing to pay $5 million in damages, making it the largest settlement 

of its kind in Pennsylvania history: PennEnvironment (2011), http://www.polluterwatch.com/genon-energy and 

http://triblive.com/x/pittsburghtrib/business/s_728664.html#axzz2BPYHL9eP.

320 EIP (July 2010).
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

81

http://www.environmentalintegrity.org/news_reports/documents/20100720SewardPressReleaseFINAL_0

01.pdf

PennEnvironment (2011): Judge Rules GenOn Liable for Over 8,500 Environmental Violations at 

Conemaugh Power Plant: PennEnvironment, Sierra Club applaud decision; GenOn’s potential legal 

exposure is significant, March 22, 2011. Accessed Online November 2012.

http://www.sierraclub.org/environmentallaw/lawsuits/docs/GenOn-Release_3.22.11.pdf

PTb48. Dolphus M. Grainger Generating Station, South Carolina Public Service 

Authority (SCPSA),321 Conway, Horry County, SC

Type: Surface Impoundments.

Background and Description: Grainger Generating Station is located in South Carolina’s coastal 

plain, along the tidal Waccamaw River south of Conway. The plant comprises two units that generate 

about 170 megawatts (MW) combined322 and uses two unlined fly ash ponds to dispose of coal 

combustion residuals (CCRs).323 The nature and extent of contamination at the site is now being studied, 

ten years after arsenic was found in groundwater near the river. Discharge from the two fly ash ponds is 

covered under an NPDES permit. Groundwater is being evaluated onsite since 1994; however, no offsite 

groundwater data are available. Surface water has been evaluated offsite. 

The two generation units at Grainger Generating Station went online in 1966, at which time Ash Pond 

No.1 went into service.324 CCRs were originally wet sluiced into Ash Pond No.1. Ash Pond No.2 went 

into service in 1977.325 At this time, Ash Pond No. 1 was drained and all CCR was wet-sluiced from the 

power station directly to Ash Pond No. 2. Since 1977, Ash Pond No. 1 has functioned as a dry ash storage 

area. Both impoundments are used to store fly ash, bottom ash and boiler slag. After the CCRs settle, the 

solids are excavated from Ash Pond No. 2 and placed in Ash Pond No. 1 for disposal. Stormwater and 

any excess water from the CCR placed in Ash Pond No. 1 are continuously collected and pumped into 

Ash Pond No. 2. Ash Pond No. 2 has a permitted National Pollutant Discharge Elimination Systems 

(NPDES) outfall.326

 

321 SCPSA is South Carolina's state-owned electric and water utility, known also as Santee Cooper. Until the end of 

2008, Grainger Generating Station was owned by Central Electric Power Cooperative and leased to Santee Cooper.

322 According to Santee Cooper’s Tour Brochure, the station utilizes bituminous coal that is hauled by rail from 

Kentucky: 

https://www.santeecooper.com/portal/page/portal/SanteeCooper/AboutUs/documents/graingerpowerhousetours.pdf

323 According to The State (2012) and The Sun News (2012), the station shut down operation in May 2012. 

According to Myrtle Beach Online (2012), on October 19, 2012 Santee Cooper decided on a permanent shutdown of 

the plant ‘to avoid the cost of upgrading the station with air pollution control equipment.’ Engineering studies are 

underway to determine the possible uses for the property and the man-made Lake Busbee, a large cooling pond 

across U.S. 501 from the plant.

324 According to Santee Cooper (2009), Ash Pond No. 1, located adjacent to and northeast of the power plant, has a 

total surface area of 42.5 acres and a storage capacity of 298 acre-feet.

325 According to Santee Cooper (2009), Ash Pond No. 2, located southeast and downstream of Ash Pond No. 1 along 

the Waccamaw River, has a total surface area of 39 acres and a storage capacity of 429 acre-feet.

326 GEI (2010). According to SCPSA (2009), the impoundments were then receiving only minimal fly ash due to 

successful recycling. The fly ash was transported to a Carbon Burnout facility at SCPSA’s Winyah Generating 

Station where it was processed for use by the concrete industry. The FGD gypsum, made by Grainger’s forced 

oxidation process, was recycled into wallboard at a facility located adjacent to the Winyah Generating Station, and 

also sold for agricultural and other uses.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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Boring logs from the Grainger Generating Station indicate that the predominant overburden soil consists 

of dense, tan and gray silty sand with some clay and organics. The borings extend to a maximum of about 

20 feet below the dam foundation, and bedrock was not encountered.327 The Bear Bluff Formation, 

composed of clay, is located at a depth varying from 15 feet to 25 feet below the ground surface. The 

actual bottom of the Bear Bluff Formation has not been encountered in borings advanced 35 feet from the 

top of the formation.328

Shallow water table aquifer conditions are assumed to exist in the overburden soil, and the localized 

groundwater flow is presumably towards the Waccamaw River. SC DHEC believes the river acts as a 

discharge boundary and therefore off-site migration beyond the river is not likely.329

Impact and Damage Claims: EIP (2010) indicates that levels of arsenic exceeded the primary EPA 

Maximum Contaminant Level (MCL) in onsite groundwater at two wells during one monitoring event in 

2000.These two wells had extremely high concentrations above the drinking water standard – 0.418 mg/L 

in Well 4R and 0.917 mg/L in Well 3. The most recent sampling at the Grainger ash ponds (April 2010, 

October 2010, and April 2011) shows arsenic above the MCL in seven of ten wells, with a maximum 

value of 2,112 ppb (more than 200 times over the MCL).330

According to The Sun News (2012), three of the six monitoring wells installed in the 1990s consistently 

showed groundwater arsenic levels below the EPA's MCL. However, the other three wells consistently 

showed arsenic levels ranging from less than 100 ppb to 900 ppb. DHEC told SCPSA in a February 9, 

2009, letter that the groundwater contamination put the utility in violation of the state's Pollution Control 

Act.331 DHEC also requested that the facility submit a proposal for work to stabilize the situation or a 

corrective action plan for the remediation of arsenic-contaminated groundwater at the site.332

EIP (ibid) indicates that offsite surface water sampling events conducted in 2001 and 2006 did not find 

that arsenic was leaching into Waccamaw River. However, the Report argues that results from these 

events were not compared to appropriate standards for protection of human health by consumption of 

contaminated water and organisms, since the Waccamaw River in the area of the Grainger Station has a 

“Freshwater” designated use.333 According to the Sun News (2012), DHEC in 2009 also asked SCPSA to 

sample the Waccamaw River to see if arsenic had made its way there from the coal ash ponds. Most of 

those surface water tests showed levels below the EPA's MCL, but a few of the tests showed arsenic 

levels approaching 10 ppb and one -- taken on October 21, 2010 -- came in at 11 ppb.

 

327 Boring logs taken by Geotec, Inc. in 1990; GEI (ibid).

328 Santee Cooper – Grainger Station Proposed Closure Plan (2013).

329 Telephone conversation with Stacey Adams, SC DHEC, January 27, 2010, cited in EIP (ibid).

330 Risky Business (2011) and The Sun News (2012).

331 Federal regulations call for groundwater to be cleaned to drinking water standards, even if the groundwater is not 

a drinking water source, and the Grainger tests showed arsenic levels that far exceeded those standards

332 In his 2010 memo to the utility's board of directors, the station’s CEO stated that “DHEC could choose to call 

this a violation, even with the somewhat unrealistic expectation of meeting drinking water standards under an 

impoundment that was designed in the 1960s without the benefit of post-1990s liner technology."

333According to South Carolina’s water use classification standards, the allowable concentrations for arsenic in a 

freshwater stream (S.C. Classified Waters, R.61-69) range from 0.000018 mg/L for human consumption of water 

and organisms, to 0.00014 mg/L for consumption of organisms only, to 0.01 mg/L for drinking water consumption. 

EIP (ibid) argues that the sole use by SC DHEC of the 0.01 mg/L standard for arsenic in the Waccamaw River does 

not prevent the adverse risks posed to people consuming fish from the river if arsenic concentrations in the water 

exceed 0.00014 mg/L.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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Evaluation against Proven Damage Criteria334

Resolution: The site is listed on the South Carolina Groundwater Contamination Inventory (2008) for 

undifferentiated metals contamination,335 and is listed as being in a remediation phase. South Carolina 

DHEC has indicated, however, that no remediation of the impoundments is being conducted, that ongoing 

assessment activities are “informal,” and that no notices of violation or orders have been issued to the site 

owner. 

In February 2009, DHEC required a proposal for stabilizing arsenic exceedances in three monitoring 

wells or a corrective action plan. The Plan included reducing the hydraulic load on Ash Pond No.1; aquarterly surface water sampling plan; a receptor study; and additional groundwater wells and 

piezometers.336 According to EIP (ibid), SCPSA was required to complete an assessment (due in April 

2010) to determine the nature and extent of contamination associated with the impoundments, to 

determine if off-site impacts are likely, and to determine if the adjacent Waccamaw River has been 

affected. According to the Sun News (2012), SCPSA has yet to submit a remediation plan, but it did 

submit plans for additional testing in August 2009. DHEC never formally cited Santee Cooper for 

violating the S.C. Pollution Control Act and has not taken any enforcement action against the utility.

According to the Sun News (2012), in an April 21, 2011 email, DHEC suggested (but did not require) that 

SCPSA also collect sediment samples". According to DHEC, SCPSA’s fish tissue study in 2011 to 

determine whether arsenic had damaged fish in the Waccamaw River turned out negative results.

SCPSA claims that the utility is fulfilling all of DHEC's requirements and a final plan to address the coal 

ash ponds and groundwater contamination is in the works. The Utility further claims that testing since the 

1990s has shown the contamination has not left the Grainger property, that there are no drinking water 

wells in the vicinity, and that the arsenic does not represent a health risk. DHEC claims that the agency 

 

334 ICF (2010a).

335 DC DHEC (2008).

336 Site Assessment Work Plan, Santee Cooper – Grainger generating Station, Santee Cooper and Kestrel 

HorizonsTM, 8/26/2009.

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels 

(MCLs) or other health-based standards 

measured in groundwater at sufficient 

distance from the waste management unit 

to indicate that hazardous constituents 

have migrated to the extent that they 

could cause human health concerns

 Onsite groundwater data exceeded the primary EPA MCL for 

arsenic at two wells during one event in 2000, and in seven 

wells during three sampling events in 2010-2011. 

 No offsite groundwater data are available. 

Criterion 2: Where a scientific study 

provides documented evidence of another 

type of damage to human health or the 

environment (e.g., ecological damage)

 EIP (2010) argues that surface water data from the 

Waccamaw River were not compared to appropriate 

standards, and that the South Carolina DHEC’s finding that 

arsenic was not leaching into the river is flawed. 

Criterion 3: Where there has been an 

administrative ruling or court decision 

with an explicit finding of specific 

damage to human health or the 

environment

 The South Carolina Public Service Authority (SCPSA) is 

currently responsible for determining the nature and extent of 

contamination associated with the ash ponds, including if 

offsite impacts are likely. South Carolina DHEC personnel 

have indicated that the no remediation of the ponds is being 

conducted, that ongoing assessment activities are “informal,” 

and that no violations or orders have been issued to the site 

owner. 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

84

has been working with SCPSA since August 2009 to assess the contamination. Testing since then has 

"determined that the groundwater contamination is not adversely impacting the Waccamaw River water 

quality." 

On June 6, 2012, a coalition of citizen groups filed a lawsuit against SCPSA over discharges of arsenic 

that presumably drains into the Waccamaw River, asking a judge to find the utility in violation of the 

state's Pollution Control Act.337 At the heart of the lawsuit is what the claimants say is SCPSA’s plan to 

leave the coal ash ponds where they are and without any remediation into perpetuity, rather than remove 

the ponds’ contents to a lined industrial landfill away from the river banks and floodplain; and that 

SCPSA should cleanup the groundwater contamination.338 The claimants are also concerned that were the 

embankments containing the impoundments with the 650,000 tons of CCRs to be breached by the river’s 

high-stage caused by a hurricane or other flood inducing event, the recreational use of the river would be 

suspended for an extended period. The suit was filed on the same day the South Carolina Legislature 

passed an amendment to the state’s Pollution Control Act abolishing citizens’ right to sue polluters going 

forward, but preserving the right to enforce past violations of the Act.

On December 18, 2012, a Horry County court has ruled that conservation groups represented by SELC 

may go forward with the June 6 lawsuit challenging coal ash contamination at Santee Cooper’s Grainger 

Generating Station.339 Santee Cooper moved to dismiss the case, but the Horry County Circuit Court ruled 

that South Carolina law expressly allows the suit to go forward and does not protect illegal pollution that 

occurred before the amendment was passed.

In a Feb. 21, 2013 letter340 to the public utility and to regulatory agencies (EPA and DHEC), 

environmental groups341 announced their intent to sue Santee Cooper over leaks from coal ash lagoons at 

its Grainger power plant. According to SELC, the Plant’s two coal ash lagoons are releasing 

unauthorized discharges of arsenic and other pollutants into the Waccamaw River and nearby wetlands in 

violation of the Clean Water Act. Unless the utility enters into a binding agreement within 60 days to stop 

the alleged violations, SELC said it would file a lawsuit in the matter. SELC then proceeded to file a 

lawsuit against Santee Cooper in the U.S. District Court of South Carolina,342 alleging that Santee Cooper 

has violated the federal CWA.

On March 18, 2013, Santee Cooper announced it had submitted to state regulators a proposed closure plan 

for coal ash in its impoundments. According to the plan, the ash ponds would be closed by installing a cap 

with lateral isolation (“vault”) to contain all of the ash that is on the site. Creation of a vault will involve 

removing all the ash from Ash Pond 2 to Ash Pond 1, installing a cap over the consolidated ash, installing 

 

337 Southern Environmental Law Center (2012), The State (2012), and The Sun News (2012). The Southern 

Environmental Law Center (SELC) filed the suit (Civil Action No. 2012-CP-26-4462) on behalf of the Waccamaw 

Riverkeeper, the Coastal Conservation League, and the Southern Alliance for Clean Energy.

338 The claimants invoke violation of the S.C. Code Ann. §§ 48-1-10 et seq., contending that the SCDHEC has been 

slow to force SCPSA to clean up the pollution even though the state agency has known about the arsenic 

contamination in groundwater for more than a decade. DHEC also allowed the Grainger plant to operate for the past 

six years under an expired water discharge permit. State law allows industries and others to operate under expired 

environmental permits as long as a renewal application has been filed (SCPSA filed its renewal application and the 

expired permit has stayed in effect while DHEC reviews the application). SCPSA has never obtained a permit for 

the arsenic groundwater discharges.

339 Southern Environmental Law Center press Release: 

http://www.southernenvironment.org/newsroom/press_releases/horry_county_court_rules_against_santee_cooper_al

lowing_coal_ash_lawsuit_to/.

340 http://op.bna.com/env.nsf/id/jstn-955tl7/$File/Grainger.pdf.

341 The Southern Environmental Law Center (SELC).

342 Civil Action No. 2:13-cv-001144-CDN.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

85

a barrier circling the perimeter of Ash Pond 1/Coal Pile Area, and vertically tying into the Bear Bluff 

Formation clay bottom barrier that is present beneath the site.343

On November 19, 2013, Santee Cooper announced a settlement with the conservation groups who sued 

the Grainger Station in Federal and State courts.344 According to the announcement, the utility will use all 

of the ash in ponds at its Grainger, Jefferies and Winyah generating stations for beneficial purposes. 

Santee Cooper said it will empty the ash storage ponds at the Granger Station over the next 10 years and 

ship the ash for use by the cement and concrete block industries.345

ICF (2010) Rationale: Inadequate Information. <There have only been two onsite exceedances of the 

primary EPA MCL for arsenic, both of which occurred in 2000. Subsequent NPDES-required 

groundwater monitoring has not found any additional exceedances over the last 10 years. Additionally, an 

investigation associated with the ponds is ongoing to determining the nature and extent of contamination 

and if offsite impacts are likely. The EIP/EJ February 2010 Report argues that surface water data from the 

Waccamaw River were not compared to appropriate standards, however no specific data comparisons are 

provided to support the claim and there is no scientific study that provides documented evidence of 

damage to human health or the environment. Ongoing assessment activities are “informal” and there are 

currently no regulatory corrective actions, administrative rulings, or court decisions associated with the 

site.>

USWG rejects this site as a damage case.346

Postscript: Based on more recent data indicative of persistent and increasing level of onsite arsenic 

exceedances in several monitoring wells and in one case – in the Waccamaw River, this case is a 

legitimate Potential Damage Case.

 

343 Santee Cooper – Grainger Station Proposed Closure Plan (2013). A barrier at least 30 inches thick made of a 

mixture of cement and manufactured clay will constitute an effective wall around Ash Pond 1.

344 Santee Cooper to Recycle Coal Ash: BNA, November 19, 2013; Settlement Agreement:

http://op.bna.com/env.nsf/id/maln-9dluu3/$File/settlement.pdf

345 According to the settlement, the conservation groups committed to withdraw their outstanding federal and State 

lawsuits. Santee Cooper, in return, committed to: (i) Deposit no more CCRs at Grainger; (ii) NLT Dec. 31, 2023, 

excavate all the CCR from Ponds 1 and 2 and one foot of underlying soil (and additional underlying soil, if required 

by DHEC), and remove all the CCR and soil to be sold or placed in a Class 3 or better landfill; (iii) Make good faith 

efforts to complete the excavation and removal of CCR and soil from the site by December 31, 2020; (iv) Notify the 

DHEC that it is withdrawing its previously submitted recommendation of a closure option for the CCR ponds and 

intends to amend the plan consistently with the Consent Agreement; (v) Sample groundwater at the site semiannually in accord with its current practices and the draft NPDES permit (#SC0001104) that was issued for public 

comment on Aug. 30, 2013. Santee Cooper shall submit the monitoring results to DHEC and copy the conservation 

groups, with reports to continue until two years after removal of all the CCR and underlying soil; (vi) Provide semiannual status reports to DHEC on the progress in removal of CCR and soil from the site, and copy the conservation 

groups; (vii) Copy the conservation groups on any report submitted to DHEC regarding spills and releases to the 

Waccamaw River and any dike breaks/breaches in Ponds 1 and 2; (viii) Copy the conservation groups on any 

Discharge Monitoring Reports submitted to DHEC; (ix) If in two consecutive sampling periods the arsenic levels in 

groundwater exceed 10ppb in any sampled monitoring well, Santee Cooper shall report to DHEC and confer on 

needed remedial action, if any; and (x) Close the Grainger CCR ponds in accordance with a closure plan approved 

by DHEC. 

346 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0211. “The site is listed on the South Carolina 

Groundwater Contamination Inventory for 2008; however no violations or orders have been issued. SCPSA is 

required to complete an assessment to determine the nature and extent of contamination associated with the ash 

ponds. This case does not meet the criteria for a damage case because the allegations do not contain any documented 

evidence of off‐site groundwater monitoring data or off‐site groundwater monitoring data showing exceedances of 

specified health‐based criteria.”
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

86

References

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

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #27. Environmental 

Integrity Project and Earthjustice. February 24, 2010.

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

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

Appendix B, Case #27. ICF, 10/2010.

Santee Cooper (2009): South Carolina Public Service Authority (Santee Cooper) Response to EPA's 

Requests for Information Under Section l04(e) of the Comprehensive Environmental

Response, Compensation, and Liability Act, 42 U.S.C.9604(e), March 25, 2009. Accessed Online 

November 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/santee-cooper.pdf

GEI (2010): Specific Site Assessment for Coal Combustion Waste Impoundments at Santee Cooper 

Grainger Generating Station, Conway, South Carolina. GEI Consultants, December 2010. Accessed 

Online April 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/santee_cooper_ggs_final.pdf

Risky Business (2011): Risky Business: Coal Ash Threatens America’s Groundwater Resources at 19 

More Sites. EIP Report, December 13, 2011. Accessed Online April 2012.

http://www.environmentalintegrity.org/documents/121311EIPThirdDamageReport.pdf

SC DHEC (2008): South Carolina Department of Health and Environmental Control (SC DHEC), 

Groundwater Contamination Inventory, Technical Report #002-08, October 2008. Accessed Online April 

2012.

http://www.scdhec.gov/environment/water/gwci/gwci.pdf

SCPSA (2009): South Carolina Public Service Authority (Santee Cooper) Response to EPA's Requests 

for Information Under Section l04(e) of the Comprehensive Environmental Response, Compensation, and 

Liability Act, 42 U.S.C.9604(e), March 25, 2009. Accessed Online April 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/santee-cooper.pdf

Southern Environmental Law center (2012): Case Filed to Protect Waccamaw River from Coal Waste’s 

Arsenic Contamination. Press Release, June 7, 2012. Accessed Online November 2012.

http://www.southernenvironment.org/newsroom/press_releases/coal_ash_waccamaw_river_6-6-12/

The Sun News (2012): Santee Cooper, environmentalists battle over pollution at Conway's Grainger 

plant. David Wren, the Sun News, Myrtle Beach, S.C., August 12, 2012. Accessed Online August 2012. 

http://www.myrtlebeachonline.com/2012/08/11/2995049/santee-cooper-environmentalists.html

The State (2012): Coal pollution suit filed against Santee Cooper. Sammy Fretwell, The State, South 

Carolina’s Homepage, June 7, 2012. Accessed Online August 2012. 

http://www.thestate.com/2012/06/07/v-print/2305964/coal-pollution-suit-filed-as-deadline.html

Myrtle Beach Online (2012): Conway Power Plant Closed for Good. October 19, 2012. Accessed Online 

November 2012. 

http://www.myrtlebeachonline.com/2012/10/19/3123526/santee-cooper-to-closeconway.html#storylink=cpy
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

87

Santee Cooper – Grainger Station Proposed Closure Plan (2013): Santee Cooper – Grainger Generating 

Station Proposed Closure Plan, SC DHEC Water Permit SC0001104, a letter with an Executive Summary 

of the Closure Plan submitted to the Director of the Division of Water Facilities Permitting, SCDEC, 

March 18, 2013. Accessed Online March 2013. 

http://op.bna.com/env.nsf/id/maln-95ytlf/$File/santee%20cooper.pdf

PTb49. Wateree Station,347 South Carolina Electric and Gas (SCE&G), Eastover, 

Richland County, SC

Type: Surface Impoundment.

Background and Description: Coal combustion residual (CCR) produced at the Wateree Station has 

been placed into two unlined, ash surface impoundments located in Eastover, South Carolina, some 300 

feet away from the Wateree River.348 Ash Ponds No. 1 and No. 2 were commissioned in the early 1970s 

and have been receiving waste to the present time. Ash Ponds No. 1 and No. 2 act as the primary settling 

pond and polishing pond, respectively, for ash sluicing operations. Jointly, both impoundments have a 

capacity of about two million cubic yards each.349 Water from Pond No. 2 is discharged through a ditch 

into the Wateree River pursuant to an NPDES permit. The NPDES permit authorizes discharges from 

Pond No. 2 into the Wateree River from Outfall 03A (the normal point source discharge) and from Outfall 

03B (an emergency point of discharge). The NPDES permit contains no effluent limitation for arsenic, 

nor does it cover or authorize other pollutants.

In addition, the site has coal pile runoff pond that receives also about 5 million gallons/year of leachate 

from the on-site industrial solid waste landfill350 and two low-volume waste ponds for wastewater 

treatment. The facility’s area was previously owned by the Lawrence Stone & Gravel Company, Inc. 

(LS&GC). River gravel and sand were quarried using open pit mining. SCE&G acquired a 181-acre tract 

from the LS&GC, which included at least one open pit. The open pit was modified for use as ash 

storage.351

 

347 According to SCE&G’s website: http://www.sceg.com/en/about-sceg/power-plants/fossil-fired/wateree-station/, 

the Wateree Station generates 700 MW of electricity by burning pulverized coal in two identical generation units.

348 The site is about 25 miles southeast of Columbia, and upstream of the Congaree National Park, which is 

reportedly one of the largest contiguous sections of floodplain forest in North America.

349 Data from Dewberry & Davis, LLC (2010) and Wateree Plant’s response to an EPA/OECA ICR Question #5, 

August 2010: Mgmt Area Volumes.xsl. Catawaba Riverkeeper Foundation (2012) cites CCR contents of ‘over 2.4 

million tons of wet coal ash’. The actual volumes fluctuate by about 20 percent, due to periodic excavation and 

removal of ash for recycling and pond performance. The surface areas of ponds No. 1 and No. 2 are 80 and 76.6 

acres, respectively. According to a hydrologic and hydraulic study provided by SCE&G dated October 2006 

(Dewberry & Davis, LLC, ibid), Ash Pond No. 1 is assumed to be completely full of ash; however, as stated by 

SCE&G (in Dewberry & Davis, LLC, ibid, Section 2.2) it is common practice to excavate and remove ash from 

within Ash Pond 1 for recycling and pond performance, thus, the pond is dynamic with regards to accumulation and 

removal of ash. According to Dewberry & Davis, LLC, Appendix B, Coal combustion Dam Inspection Checklist 

Form No. 1, virtual page 287, during the field visit on June 28, 2010, the pond was receiving water and CCRs.

350 Class III Landfill for FGD gypsum and ash, with a synthetic liner and a capacity of 1.9 million cubic yards. For a 

SC Administrative Law Court Decision, issued on July 10, 2008, overruling farmer’s Heath Hill request against SC 

DHEC and SCE&G (Docket No. 08-ALJ-07-0183-CC) to prevent the landfill’s construction, see:

http://www.scalc.net/decisions.aspx?q=4&id=11009

351 A Carbon Burn-Out facility has been in operation at the Wateree Station since 1998. It is designed to process 

180,000 tons of high-carbon fly ash annually. The product ash has less than 2 percent carbon. The process generates 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

88

The uppermost sediments at the site are composed of relatively sandy clay overlain by clay at varying 

depths across the site. The confining bottom clay is within the Paleocene age Black Mingo Group’s 

Sawdust Landing Formation. Some isolated occurrences of clean sand are present. These sands are 

potential preferential pathways for groundwater flow. Groundwater is present from approximately 8 to 23 

feet below land surfaces, and the overall groundwater flow is toward the Wateree River.352 Groundwater 

has been evaluated onsite and private testing has occurred offsite. Surface water has been evaluated 

offsite at the Wateree River.

Impact and Damage Claims: EIP (2010) indicates that levels of arsenic exceeded the primary EPA 

Maximum Contaminant Level (MCL) in onsite groundwater. Elevated levels of arsenic, up to 1,900ppb, 

were reported to seep through two leaks in the impoundment’s earthern dike, and into the adjacent 

Wateree River.353 According to EIP (ibid), groundwater monitoring around the impoundment has detected 

arsenic at x18 the federal MCL. Recent evidence shows that the arsenic contamination has migrated to an 

adjacent property354 and is being accumulated in biota in the Wateree River. Fish living in the Wateree 

River in close proximity to the plant were found to have elevated tissue levels of arsenic in comparison to 

upstream and downstream populations. One catfish was found to have arsenic tissue levels of 5ppm.355

Three fly ash leachate samples yielded 0.238-0.319 mg/L of arsenic, as well as significant concentrations 

of antimony, selenium, and thallium.356

EIP (ibid) claims that in the 1990s, the groundwater underlying an ash pond at Wateree plant was reported 

to have had concentrations of arsenic as high as 180 ppb. Review of groundwater monitoring data 

between 2001 and April 2011 shows that arsenic has been exceeding the MCL by orders of magnitude in 

five of six wells. The highest levels was recorded in MW-11 in 2006, at 5,100 ppb, x510 the MCL; and 

4,051ppb in 2007. In both instances, a retest yielded levels below the 3,000 ppb limit set in the Consent 

Order Agreement (COA), and SCE&G was not required to take any further action. Exceedances 

continued in two of eight wells in the most recent sampling, with a maximum of 1,100 ppb (x110 the 

MCL). MCLs were also exceeded from 2001 to 2011 for chromium (in one well, 187 ppb), cadmium (in 

 

some 475,000 MM BTUs per year of useful heat recovered back to the Wateree units, reducing ash storage and coal 

freight costs: http://www.pmiash.com/docs/CBO_at_the_Wateree_Station_of_SCEG_Jan99.pdf

352 Dewberry & Davis, LLC (ibid).

353 The reported concentrations are cited in local newspaper reports: The State (Oct. 4, 2009) and The Post and 

Courier (date unknown).

354 Contaminated water was entering the Wateree River through seeps: one seep was observed to flow at 

approximately 10-20 gpm, and the other at about 1.5 gpm. Samples taken by DHEC from the two seeps in 

September 2009 contained arsenic at 1,900 ppb and 770 ppb, respectively. For comparison, according to The State 

(2009), in 1997, a Battelle report found much lower arsenic levels - up to 604 ppb, seeping through the dike and 

toward the Wateree River. In addition, surface water samples taken by DHEC from a wetlands area adjacent to Pond 

No. 2 revealed iron levels that significantly exceeded the state and federal SMCLs. The wetland sampling also 

detected an arsenic level of 9.2 ppb and zinc levels of 35 and 48 ppb, close to the Criterion SMCLs for these 

pollutants.

355 In its comment to the October 2011 NODA’s docket: EPA-HQ-RCRA-2011-0392-0274, SCANA Corporation 

claims that this assertion is not supported by available data. The fish tissue analysis results cited in the EIP (2010) 

refers to fish sampling conducted by SCE&G in the Wateree River in 1999. As reported by SCE&G to SC DHEC in 

two 1996 letters, the results that included the channel catfish samples collected adjacent to the Wateree Station Plant 

with reported arsenic levels of 5 ppm are considered invalid due to significant variability in the size of fish collected 

from upstream, adjacent to, and downstream of the plant. Subsequent testing of tissue samples taken from blue 

catfish caught upstream, adjacent to and downstream of the plant indicated similar arsenic concentrations in the 

tissue samples from all three locations. Moreover, the levels of arsenic reported for all samples are within the range 

of concentrations reported in 1995 by Duke Power and 1990 by the US Fish and Wildlife Service for various fish 

species collected from river systems in other areas of both North and South Carolina.

356 Wateree Plant’s response to EPA/OECA ICR Question #8, August 2010: SCEG-WA3.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

89

two wells, a maximum of 8.8 ppb), and lead (in three wells, a maximum of 67.5 ppb).357 Still, USWAG 

denies that this case meets the criteria for a damage case.358

Evaluation against Proven Damage Criteria359

Resolution: In 2001, SC DHEC cited SCE&G (in a COA) for violations.360 The COA was issued in 

response to monitoring well data collected between 1997-1999 that showed exceedances of arsenic 

associated with the two impoundments. The COA established a Groundwater Mixing Zone, with semiannual groundwater monitoring to be conducted in nine wells ’until acceptable groundwater standards are 

attained’. The Mixing Zone Concentration Levels (MZCLs) for arsenic were established at 3,000 ppb for 

 

357 Watchdog Update: More Contamination Found at SCE&G Wateree Coal Plant: 

http://www.postandcourier.com/news/2009/oct/05/05ashwatchweb/

358 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0211: “This case does not meet the criteria for 

a damage case because the allegations do not contain any documented evidence of off‐site groundwater monitoring 

data or off‐site groundwater monitoring data showing exceedances of specified health‐based criteria. Allegations in 

the reference claim that private testing found leaks in the containment wall between the impoundment and the river 

but provide no information on what type of samples were collected, when samples were collected, or by what entity; 

do not provide surface water sample data; and, claim damage to fish based on tissue sample analysis but provide no 

information on the study conducted, when it was conducted, or by what entity.”

359 ICF (2010a).

360 DHEC Consent Agreement # 01-053-W, February 22, 2001. In: Wateree Plant’s response to an EPA/OECA ICR 

Question #11, August, 2010; 20100615145346362.pdf. This was confirmed by the South Carolina Department of 

Health and Environmental Control (SC DHEC) in its feedback in response to EPA’s Region 4 inquiry following 

stakeholders’ complaints in the 2010 Charlotte Public Hearing (a January 3, 2012 email from L. DiGaetano, EPA 

Region 4, to A. Livnat, EPA/OSWER). At that time, SC DHEC cited the plant for violating state groundwater 

standards, and the plant agreed to take action to reduce contamination; however, recent evidence shows that arsenic 

contamination continues to be a concern.

Criteria Evaluation

Criterion 1: Documented exceedances 

of primary maximum contaminant 

levels (MCLs) or other health-based 

standards measured in groundwater at 

sufficient distance from the waste 

management unit to indicate that 

hazardous constituents have migrated 

to the extent that they could cause 

human health concerns

 Onsite groundwater data exceeded the primary EPA MCL for 

arsenic.

 No offsite groundwater data are available.

Criterion 2: Where a scientific study 

provides documented evidence of 

another type of damage to human 

health or the environment (e.g., 

ecological damage)

 Private testing at a nearby farm property found arsenic levels 

above unspecified “state standards” in seeps leaking offsite.

 Elevated fish tissue arsenic concentrations have been reported in 

a single catfish near the site in comparison to concentrations 

found upstream and downstream of the Site.

Criterion 3: Where there has been an 

administrative ruling or court decision 

with an explicit finding of specific 

damage to human health or the 

environment

 Neighboring landowners have filed lawsuits to stop 

contamination from reaching their property.

 The Wateree Station plant was cited in 2001 by the South 

Carolina Department of Health and Environmental Control 

(DHEC) for violations related to arsenic exceedances of state 

standards in groundwater. However, no regulatory action was 

taken by DHEC after the site owner agreed to take action to 

reduce contamination from the impoundment.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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MWs No. 3, No. 4 and No. 11; and 50 ppb in the other wells;361 similarly, ’relaxed’ MZCL standards 

were also established for sulfate, lead, chromium, and cadmium. The COA stated that ’the plume is 

confined to a shallow geologic unit at the Site and groundwater withdrawls on the adjacent property are 

unlikely to cause the plume to migrate offsite.... contaminant concentrations at the Site....neither are 

causing nor reasonably expected to cause an adverse surface water impact’. In the COA, DHEC 

concludes that SCE&G has violated the Pollution Control Act (PCA), “in that it discharged arsenic into 

the environment without a permit from the Department.” DHEC also concludes that SCE&G has violated 

the South Carolina Water Classifications and Standards by failing to maintain groundwater quality in 

accordance with Class GB standards.362

In 2009, SCE&G reported to DHEC that contaminated water was entering the Wateree River through 

seeps. No regulatory action were taken after SCE&G agreed to take action to reduce contamination.363 In 

October 2009, after neighboring landowners filed lawsuits to stop contamination from reaching their 

property, an Administrative Court judge refused to dismiss the legal case against SCE&G and the 

Department of Health and Environmental Control.364 Ultimately, however, the judge ruled in favor of 

SCE&G, citing the agreement the utility had reached with DHEC in 2001 in response to numerous 

complaints of arsenic contamination dating back to 1995.365

In a July 12, 2010 letter to SCE&G, DHEC noted that “a review of historical data indicates a slight 

increasing arsenic trend in MW-3 and MW-11”. On October 14, 2011, SCE&G signed a private 

Memorandum of Agreement (MOA) with DHEC. The MOA sets out an anticipated timeline in which 

SCE&G would transition to dry handling of fly ash and close the impoundments.366 The private MOA 

contains no binding commitments, and by its terms, it may be terminated by either party upon 30 days’ 

written notice.367

On January 12, 2012, a citizens’ group filed a lawsuit in federal court against SCE&G’s, 368 challenging 

ongoing unlawful discharges of arsenic and other contaminants into waters of South Carolina without a 

 

361 In its comment to the October 2011 NODA’s docket: EPA-HQ-RCRA-2011-0392-0274 SCANA Corporation 

claims that in February 2001, a Groundwater Mixing Zone (GMZ) Agreement between SCE&G and SCDHEC was 

executed, to address elevated concentrations of metals in groundwater surrounding Wateree Station’s coal ash 

impoundments. The GMZ Agreement sets limits for arsenic in groundwater of 50 ug/L for monitoring wells along 

the mixing zone boundary, with a less stringent limit (i.e., 3,000 μg/L) for monitoring wells within the mixing zone. 

There have been no violations to date of the arsenic standards set forth in the 2001 GMZ Agreement.

362 I.e., where groundwater is of such quality and quantity that it could or does supply water to a public drinking 

water system; the arsenic limit for Class GB waters is 10 ppb [S.C. Code Reg. 61-68 (2011)].

363 Arsenic Draining into the Wateree River: ‘Angry’ Residents Concerned about SCE&G Plant: 

http://www.thestate.com/2009/10/04/v-print/970356/arsenic-draining-into-wateree.html

364 Heath Hill, plaintiff (see also one of the preceding footnotes): The State (2009).

365 The State (2010) and Daily KOS (2010).

366 Specifically: transition to dry handling of fly ash and FGD and closure of the impoundments by December 31, 

2011; transition to dry handling of bottom ash by December 31, 2012; expand its Class III Industrial waste landfill to 

accommodate more coal ash by December 31, 2015; and complete its removal of ash from the surface 

impoundments by January 1, 2022.The FGD landfill will have a liner made of two feet of clay, overlaid with a 

Geosynthetic Clay Liner (GCL), and a leachate collection system: http://www.sceg.com/NR/rdonlyres/00BEA691-

94FB-44AD-91AF-002D558D3EAF/0/WatereeLandfillQAWithHagoodRevisions01212009.pdf

367 There was no public notice of this nonbinding agreement, and the agreements were not subject to public 

participation or comment.

368 The lawsuit was filed by the Southern Environmental Law Center (SELC) on behalf of the Catawaba Riverkeeper 

Foundation, Inc.: US District Court (2012b). For a summary of the filed claims, see SELC’s January 12, 2012 Press 

Release at:

http://www.southernenvironment.org/newsroom/press_releases/case_filed_to_protect_wateree_river_from_coal_wa

ste_contamination/.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

91

permit by the Defendant, in violation of the South Carolina Pollution Control Act, codified as S.C. Code § 

48-1-10 et seq. It asks that SCE&G be ordered to stop dumping more coal ash waste into the lagoons, 

empty the lagoons as soon as reasonably possible, store its coal ash waste outside the floodway and 

floodplain of the Wateree River in an appropriately lined landfill, and remediate its contamination of the 

groundwater and stop its discharges of arsenic and other pollutants into the Wateree River.

According to a Settlement filed August 17, 2012, in the U.S. District Court for the District of South 

Carolina, SCE&G will move toward decommissioning the Wateree’s Station coal ash storage ponds.369

Under the settlement with Catawba Riverkeeper Foundation Inc., the utility will remove 240,000 tons of 

the 2.4 million ton of coal ash from the wet storage facility by 2015, and all coal ash will be removed 

from storage ponds by 2021. The settlement sets timelines for coal ash removal from a current storage 

pond and a cessation of disposal in that pond. The agreement also commits the utility to installing 

equipment for dry bottom ash handling and constructing a new synthetically lined wastewater pond. By 

the end of June 2014, SCE&G reported that it has removed almost 500,000 tons of coal ash from its coal 

ash lagoons on the banks of the Catawba-Wateree River, well ahead of schedule. The coal ash is being 

moved to a modern, lined landfill away from the river on the site of an SCE&G facility, where it is stored 

dry.370 

ICF (2010) Rationale: Potential Damage. <Groundwater exceedances of the primary EPA MCL for 

arsenic have been found on site. While the EIP/EJ February 2010 Report claims exceedances of 

unspecified “state standards” in offsite seepage water and elevated arsenic concentrations in fish tissue, 

there is no scientific study presented that links these claims to evidence of damage to human health or the 

environment. A lawsuit has been filed by neighboring landowners, but there are currently no regulatory 

corrective actions, administrative rulings, or court decisions associated with the site.>

References

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

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #25. Environmental 

Integrity Project and Earthjustice. February 24, 2010.

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

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

Appendix B, Case #25. ICF, 10/2010.

“Lawyer details SCE&G water pollution” Sammy Fretwell, The State, Oct 7, 2009. Accessed Online 

October 2010.

http://www.thestate.com/2009/10/07/973941/lawyers-detail-sceg-water-pollution.html

EIP (2011): Risky Business: Coal Ash Threatens America’s Groundwater Resources at 19 More Sites. 

Comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0259, and EIP Report, 

December 13, 2011. Accessed Online April 2012.

http://www.environmentalintegrity.org/documents/121311EIPThirdDamageReport.pdf

 

369 US District Court (2012a), Bloomberg BNA (2012), and Southern Environmental Law Center August 20, 2012 

Press Release: 

http://www.southernenvironment.org/newsroom/press_releases/sceg_and_riverkeeper_reach_agreemnet_on_coal_as

h_storage/

370 According to GeosyntheticsMagazine.com (2014). 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

92

Catawaba Riverkeeper Foundation (2012): Southern Environmental Law Center’s federal lawsuit against 

South Carolina Electric and Gas Co. (a subsidiary of SCANA Corp.), 1/12/2012. Accessed Online April 

2012.

http://www.southernenvironment.org/uploads/fck/01-12-

12%20Catawba%20Riverkeeper%20v%20SCEG%20Complaint%20-%20FINAL.pdf

Dewberry & Davis, LLC (2010): Coal Combustion Waste Impoundment Final Round 5 - Dam 

Assessment Report, Wateree Station (Site #01) Ash Pond 1, Ash Pond 2, South Carolina Electric & Gas 

Company, Eastover, South Carolina, Dewberry & Davis, LLC, Fairfax, Virginia, October 2010. Accessed 

Online April 2012. 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/sc_wateree_final.pdf

Bloomberg BNA (2012): S.C. Utility Agrees to Coal Ash Removal To Settle Environmental Group's 

Lawsuit, August 21, 2012. Accessed Online August 2012. 

http://esweb.bna.com/eslw/1245/split_display.adp?fedfid=27643983&vname=dennotallissues&jd=a0d4e

8h8c3&split=0

US District Court (2012a): Catawaba Riverkeeper Foundation, Inc. v. SCE&G Co., a Subsidiary of 

SCANA Corp., the United States District Court, District of South Carolina Columbia Division, Case No. 

3:12-CV-00124-JFA, Settlement Agreement and Release. Accessed Online November 2012.

http://op.bna.com/env.nsf/id/jsml-8xcsns/$File/Catabwa-Set.pdf

US District Court (2012b): Catawaba Riverkeeper Foundation, Inc. v. SCE&G Co., a Subsidiary of 

SCANA Corp., the United States District Court, District of South Carolina Columbia Division, 

Complaint, January 12, 2012. Accessed Online November 2012.

http://www.southernenvironment.org/uploads/fck/01-12-

12%20Catawba%20Riverkeeper%20v%20SCEG%20Complaint%20-%20FINAL.pdf

The State (2009): Judge won't drop landfill-pollution case. The State, South Carolina’s Homepage, 

October 8, 2009. Accessed Online August 2014.

http://www.thestate.com/2009/10/08/975392/judge-wont-drop-landfill-pollution.html#storylink=cpy

The State (2010): Court Ok's landfill for SCE&G's coal waste. The State, South Carolina’s Homepage, 

January 23, 2010. Accessed Online August 2014.

http://www.thestate.com/2010/01/23/1123623/headlineby-sammy-fretwell.html

Daily KOS (2010): Look away Dixieland: coal ash and arsenic in South Carolina. Daily KOS, March 3, 

2010. Accessed Online August 2014.

http://www.dailykos.com/story/2010/03/03/840142/-Look-away-Dixieland-coal-ash-and-arsenic-inSouth-Carolina#

GeosyntheticsMagazine.com (2014): SCE&G moves half-million tons of coal ash: Moved from riverside 

lagoons to a lined landfill. GeosyntheticsMagazine.com, August 5, 2014. Accessed Online August 2014.

http://geosyntheticsmagazine.com/articles/080514_sceg_coalash.html
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

93

PTb50. Cumberland Steam Plant, Tennessee Valley Authority (TVA), Cumberland City, 

Stewart County, Tennessee

Type: Surface Impoundments and Ash Stack.

Background and Description: The Cumberland Fossil Plant (CUF) has two coal-fired generating 

units, consuming approximately 20,000 tons of coal per day.371 Construction of the plant began in 1968, 

and the plant came online in 1973. CUF is located in the northern portion of west-central Tennessee along 

the south bank of the Cumberland River, at the confluence of the river and Wells Creek (on the south 

shore of Lake Barkley). CUF has three coal combustion residual (CCR) disposal/storage areas on site. A 

gypsum storage area covers 170 acres and was built in 1996 as an overfill (on top of) the Plant’s original 

ash pond (online circa 1969). Another, active ash pond covers 50 acres and was built also in 1969, 

requiring the movement of Wells Creek. A dry ash stack that covers 110 acres was commissioned in 1969 

and is sited over a sluiced ash disposal area.372 The ash ponds are unlined.373 The plant is located in a rural 

area with approximately 440 houses within three miles, the majority of which use groundwater as a 

drinking source. The Tennessee Valley Authority (TVA) monitors groundwater in a number of downgradient wells and a few up-gradient wells; however, no offsite groundwater data is available.374 Surface 

flow is regulated under NPDES Permit TN0005789.375

CUF is situated near the middle of the Wells Creek Structure, a roughly circular area approximately four 

miles in diameter thought to be the result of a meteor impact.376 The rock within the central portion of this 

 

371 Cumberland Plant’s summer net capability is 2,386 MW: http://www.tva.gov/sites/cumberland.htm. For the 

Plant’s air emissions control history, see: http://www.tva.com/environment/air/cumb.htm.

372 According to Stantec (2009), approximately 530,000 tons of dry fly ash is collected in silos each year. 

Approximately 70 percent of the fly ash is marketed offsite to the concrete industry and the remaining 30 percent is 

hauled to an onsite dry stack disposal area (Dry Ash Stack). Approximately 135,000 tons per year of bottom ash is 

wet-sluiced to the Active Ash Pond. Dewatered bottom ash is reclaimed from the Active Ash Pond and stacked 

within the Dry Ash Stack. Approximately 1,100,000 tons of gypsum is produced each year. Roughly 75 percent of 

the gypsum is marketed to the adjacent wallboard company and the remaining 25 percent is wet-sluiced to the 

Gypsum Storage Area. According to TVA (2009), the storage capacity (in cubic yards), and the current and future 

maximum heights (in feet), respectively, of the three disposal/storage units are as follows: Dry Ash Stack: 

12,600,000, 35, and 200; Ash Pond: 2,000,000, 35, and 35; and Gypsum Storage Area: 20,000,000, 60, and 140. For 

a location map and an aerial photograph of the CCR Complex, see Dewberry& Davis (2013), Appendix A, 

Documents 1 and 2, respectively.

373 Dewberry & Davis (2013), Appendix A., Documents 18-20.

374 According to TVA Inspector General (2011), under Permit IDL 81-102-0086, the Cumberland Plant is required 

to monitor for 20 parameters. However, at Cumberland Plant, chemical oxygen demand was not being monitored. 

TDEC personnel said that TVA should initiate monitoring for this constituent and request a permit modification to 

eliminate the testing requirement for this constituent if appropriate. On May 9, 2011, TVA requested a minor 

modification of the permits at Cumberland to remove this constituent.

375 Discharge is through Outfall 002 to the Cumberland River, mile 103. According to Dewberry & Davis (2013), 

Appendix A., Document 14, permit was valid between 1/1/2008 and 5/31/2010, and the TVA has applied for its 

renewal. For renewal and modification applications, see TDEC (2010).

376 The original meteorite crater was about 8 miles wide and 2000 feet deep. The ejecta blanket, rim, impact melt, 

condensed bits of the original asteroid, and central uplifted peak have all been eroded since the meteorite impact 

(about 200 million years before present) and transported out of the region. Currently, at the core of the impact 

structure there is a shallow depression about three miles across and 200 feet deep. For further details, see: 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

94

feature is highly fractured to a depth of several thousand feet and a pattern of radial and longitudinal 

faults have been mapped for several miles in all directions. Bedrock of the Cambrian-aged Knox 

Dolomite and Lower Ordovician-aged limestone of the Stones River Group are exposed within the central 

portion of the structure with the limestone and shales of the more recent Silurian, Devonian and 

Mississippian Periods exposed in approximately parallel bands around the periphery. Because the CUF is 

situated along the banks of Wells Creek and the Cumberland River, a mantle of alluvial soils consisting 

primarily of silty clays overly bedrock across portions of the site.377

EIP (2010a) cites TVA’s October 2009 Groundwater Monitoring Report: <Southwestward flow of 

groundwater beneath the disposal area is indicated by the potentiometric contours with an average 

horizontal hydraulic gradient of approximately 0.0072. Because potentiometric level data are spatially 

limited, the estimated groundwater gradient is probably not representative of overall gradients in the 

disposal site vicinity. The bottom ash pond and the rim-ditch stacking operation in the gypsum disposal 

area likely produce radial groundwater flow away from these impoundments which cannot be adequately 

defined with the existing well network....The dry ash and gypsum disposal areas are underlain (in 

descending order) by some 40 feet of fly ash and bottom ash deposits, approximately 15 to 20 feet of 

residual and/or alluvial soils, and by limestone bedrock. The older ash deposits, which represent the 

shallowest water-bearing unit, exhibit a mean hydraulic conductivity of approximately 2.5x10-5cm/sec 

(or 0.022 m/d) and a porosity of 0.48. Using these data and the current groundwater gradient given above, 

the local groundwater seepage velocity through the ash deposits is estimated from Darcy’s Law to be 

approximately 3.3x10-4 m/d.>378

TVA currently monitors and reports on groundwater quality in six down-gradient wells. TVA also 

monitors two surface water locations (Wells Creek and Rye Spring), and uses them as up-gradient 

reference points. TVA removed one well (93-2) from monitoring in 2011.

Impact and Damage Claims: Groundwater: EIP (2010a) indicates that monitoring onsite found 

groundwater contamination in down-gradient wells including arsenic (up to 2.2 times) and selenium (up 

to three times) above the primary EPA Maximum Contaminant Levels (MCLs); boron exceeding the 

EPA’s Health Advisory for Children (up to 12.7 times); and aluminum, chloride, iron, manganese, 

sulfate, and total dissolved solids (TDS) exceeding their secondary EPA MCLs (SMCLs). The report also 

notes that for all these contaminants, the up-gradient samples were generally at lower concentrations or 

below the detection limit, indicating that the CCR disposal sites are the primary source of contamination. 

Since the inception of assessment monitoring early in 2009, TVA has reported intermittent exceedances 

of Tennessee GWPSs for arsenic, selenium, and vanadium. TVA also discovered very high concentrations 

of cobalt in USWAG well 10-2, at 130-150 μg/L, observing that “[t]he value of cobalt at well 10-2 is 

exceptionally high, higher than any in the fleet.” Claiming there is “no MCL or UPL in place that this 

value is exceeding,” TVA chose to stop measuring cobalt in this well after 2011. EIP (2010a) suggests

that the construction of two CCR storage-disposal areas on top of earlier ash ponds and on top of a former 

 

http://www.utc.edu/Academic/JonesObservatory/craters.php; http://www.stardazed.com/WellsCreek.html; 

http://www.memphisgeology.org/images/rocknews0311.pdf; and

http://www.passc.net/EarthImpactDatabase/wellscreek.html.

377 Stantec (2009).

378 For the groundwater potentiometric surface based on groundwater levels and inferred directions of shallow 

groundwater movement at CUF reflecting water levels measured on August 9, 2007, see TVA (2008), Figure 1. This 

map shows a bi-nodal mounding: one (395 feet MSL) underneath the gypsum-stack complex, and the other (385 feet 

MSL) underneath the ash pond. Based on this potentiometric map, the inferred direction of groundwater movement 

in the vicinity of the dry fly ash stack is generally westward toward Wells Creek. Discharge of shallow groundwater 

from the dry ash stack area to Wells Creek is also supported by the presence of seeps along the eastern bank of the 

stream.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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creek channel have created conditions conducive to groundwater contamination. TVA, in response,379

does not challenge the essence of EIP’s (2010a) impact claims.

380

Surface water: On February 2, 1997, a bypass of the hydraulically connected Cumberland Ash Pond 

Discharge Structure (Outfall 001) occurred when during about ten minutes, between one half to one 

million gallons of gypsum wastewater spilled from the Gypsum Disposal Area into Wells Creek. Heavy 

rainfall contributed to the failure of the internal gypsum dike, allowing a brief surge of wastewater to pass 

over the exterior dike in the Gypsum Disposal Area and enter the creek.381

For the NPDES Permit Modification, TVA requested approval of discharges from a series of toe drains to 

be installed for improved dike stability associated with dike seepage in the gypsum pond portion of the 

Ash Pond. Four samples were obtained from a piezometer installed in the dike. The characterization data 

indicates the seepage water to be similar to the ash pond discharge currently released through Internal 

Monitoring Point 001 to the condenser cooling discharge channel. For selenium, the sampled seepage 

water had a range of values between 0.07-0.17 mg/L. This is in excess of WQC for Fish and Aquatic Life 

of 5.0 μg/L (Chronic) and 20.0 μg/L (Acute), as well as of the DWS (5.0 μg/L).

382

Evaluation against Proven Damage Criteria383

Resolution: On August 20, 2009, TVA’s Board of Directors decided to convert Cumberland’s waste 

management by switching from wet bottom ash handling to dry storage.384

 

379 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0208.

380 According to TVA Inspector General (2011), between January 2008 and July 2009, exceedances of UPL (Upper 

Prediction Limit), and/or MCL, and/or GWPS (Groundwater Protection Standard) of arsenic, selenium and 

vanadium occurred in one-to-three of seven sampled wells in the dry ash and gypsum disposal areas. This 

assessment was based on sampling that occurred in September 2008 as a follow-up confirmation of results from the 

July 2008 sampling for Cumberland. The January 2008 report for Cumberland had an MCL exceedance for selenium 

that should have triggered an assessment.

381 Dewberry & Davis, ibid, Appendix A, Document 18

382 TDEC (2010), virtual pages 32 and 80.

383 ICF (2010a).

384 TVA (No date, presumably 2009).

Criteria Evaluation

Criterion 1: Documented exceedances of primary maximum 

contaminant levels (MCLs) or other health-based standards 

measured in groundwater at sufficient distance from the 

waste management unit to indicate that hazardous 

constituents have migrated to the extent that they could 

cause human health concerns

 Onsite groundwater data exceeded primary 

EPA MCLs for arsenic and selenium. 

 Onsite groundwater data exceeded the EPA 

Health Advisory for Children for boron. 

 Onsite groundwater data exceeded EPA 

SMCLs for aluminum, chloride, iron, 

manganese, sulfate, and TDS.

 No offsite groundwater data are available.

Criterion 2: Where a scientific study provides documented 

evidence of another type of damage to human health or the 

environment (e.g., ecological damage)

 None

Criterion 3: Where there has been an administrative ruling 

or court decision with an explicit finding of specific damage 

to human health or the environment

 Requirement (Feb. 2009) for Phase III 

Assessment Monitoring.
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According to TVA Inspector General (2011), the Cumberland Plant had exceedances that resulted in 

Phase III assessment, which occurs when a health-based standard is exceeded.385 TVA was notified on 

February 23, 2009, that CUF is being placed into assessment. In a follow-up letter on March 31, 2009, 

TVA outlined completion dates for both the Assessment Plans and Groundwater Monitoring Plans at that 

time. Since then, CUF has been working through the corrective action process described in Tennessee 

Rule 1200-1-7. The Plant, however, has not complied with the target date for the Assessment Plan 

(August 28, 2009).386

 

USWAG claims that this Site does not meet the criteria for a damage case.387

ICR (2010a) Rationale: Potential Damage. <Groundwater exceedances of the primary EPA MCL for 

arsenic and selenium, the EPA Child Health Advisory for boron, and the SMCL for aluminum, chloride, 

iron, sulfate manganese, and TDS have been found onsite. There are no administrative rulings or court 

decisions associated with the site.>

References

EIP (2010a): In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their 

Environment, Thirty-nine New Damage Cases of Contamination from Improperly Disposed Coal 

Combustion Waste, Case #32, Environmental Integrity Project, EarthJustice and Sierra Club, August 26, 

2010. 

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

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

Appendix C, Case #32. ICF, 10/2010.

Stantec (2009): TVA Disposal Facility Assessment. Phase 1 Plant Summary- Cumberland Fossil Plant 

(CUF). Accessed Online May 2012. 

http://www.tva.gov/power/stantec/tn/rpt_001_tn_report_171468118.pdf (Report)

http://www.tva.gov/power/stantec/tn/rpt_006_appndx_d_cuf_171468118.pdf (Appendix)

TVA (2009): TVA Response to a Request for Information under CERCLA Section 104(e) for Ash 

Management Units, Cumberland Fossil Plant, March 25, 2009. Accessed Online May 2012.

http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys/tva-fossil.pdf

TVA Inspector General (2011): Final Report – Inspection 2009-12991 – TVA's Groundwater Monitoring 

at Coal Combustion Products Disposal Areas, TVA Office of the Inspector General Inspection Report, 

June 21, 2011. Accessed Online November 2012.

http://oig.tva.gov/reports/PDF/11rpts/2009-12991.pdf

 

385 The permit originally required monitoring at least every six months. However, since Cumberland was placed in 

Phase III assessment in February 2009, the requirements have changed, and monitoring must be done quarterly. 

Under the Assessment Monitoring, two nearby wells are to be monitored.

386 According to the Plant’s personnel, an informal draft of the Cumberland Groundwater Assessment Plan (GAP) 

was submitted on November 9, 2010. Also, Cumberland’s personnel stated that it was agreed with TDEC to delay 

submittal of Cumberland’s Groundwater Assessment Plan until Gallatin’s GAP was finalized.

387 Comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211): “This case does not meet the criteria 

for a damage case because the allegations are only for on‐site groundwater. The information provided for the site 

does not contain any documented evidence of off‐site groundwater monitoring data or off‐site groundwater 

monitoring data showing exceedances of specified health‐based criteria.”
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

97

TVA (2008): Operational Improvements to Optimize Selective Catalytic Reduction Systems at Five 

Fossil Plants Tennessee, Alabama, and Kentucky, Supplemental Environmental Assessment, Project 

Number 2007-32, TVA, April 2008. Accessed Online February 2013.

http://www.tva.gov/environment/reports/scro/2007-32_scr_opt_fea.pdf

TVA (No date, presumably 2009): TVA’s Conversion of Wet Ash and Gypsum to Dry Storage. TVA. 

Accessed Online August 2014.

http://www.tva.gov/news/Kingston/dry_ash.pdf

TDEC (2010): Draft of NPDES Permit No. TN0005789, TVA - Cumberland Fossil Plant

Cumberland City, Stewart County, Tennessee. State of Tennessee Department of Environment and 

Conservation, Division of Water Pollution Control, February 24, 2010. Accessed Online August 2014.

http://environmentonline.state.tn.us:8080/pls/enf_reports/f?p=9034:34051:11177494056254::NO:34051:P34051_PERMIT_

NUMBER:TN0005789

Dewberry & Davis (2013): Coal Combustion Residue Impoundment Round 11 - Dam Assessment 

Report: Cumberland Fossil Plant Dry Ash Storage/Ash Pond, TVA, Cumberland City, Tennessee.

Prepared by Dewberry & Davis, LLC, Fairfax, Virginia, April 2013. Accessed Online July 2014.

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

PTb51. Gallatin Fossil Plant, Tennessee Valley Authority (TVA), Gallatin, Sumner 

County, TN

Type: Closed and Active Surface Impoundment.

Background and Description: The Gallatin Fossil Plant (GAF) is located on the northern side of a 

bend in the Cumberland River between River Miles 240 and 246, about 30 miles northeast of Nashville, 

Tennessee.388 Opened in 1959,389 the plant has three unlined coal combustion residual (CCR) disposal 

areas onsite. The first is a bottom ash impoundment (Bottom Ash Pond A) which covers approximately 

248 acres.390 The second is a fly ash impoundment (Fly Ash Pond E) which covers approximately 167 

 

388 According to TVA (2012), this portion of the Cumberland River is impounded by Old Hickory Dam (owned and 

operated by the USACE) at about River Mile 216.2.

2. According to Stantec (2009) and http://www.tva.com/sites/gallatin.htm, the Gallatin Fossil Plant has four coalfired generating units, with a total nameplate capacity of 1,255 MW and summer net capability of 976 MW. Units 1 

and 2 each have generator nameplate ratings of 300 MW, and Units 3 and 4 each have generator nameplate ratings 

of 327.6 MW. Eight fuel-oil combustion turbines, supporting GAF’s peak energy demand, were added between the 

early 1970s and 2000. The plant consumes approximately 12,350 tons of coal per day. The Federal Facilities 

Compliance Agreement (FFCA) executed between USEPA and the TVA on April 14, 2011, TVA’s consent decree 

with the States of Alabama, Kentucky, Tennessee, and North Carolina and three environmental advocacy groups 

(the Sierra Club, the National Parks Conservation Association, and Our Children’s Earth Foundation), as well as the 

Utility MATS and other anticipated regulations, all lead TVA to proposes to install and operate emission controls at 

GAF. An Environmental Assessment (TVA 2012) has been completed to comply with NEPA requirements.

390 According to Stantec (2009), the main ash pond was initially commissioned in 1970. Bottom Ash Pond A (BAPA) was formed by constructing a bottom ash divider dike in mid-1980s to separate bottom ash area (Ash Pond A) 

from fly ash area (Ash Pond E). That dike was raised in the late 1980s for additional storage capacity.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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acres.391, 392 The third is an ash impoundment (Closed Disposal Area) which covers approximately 73 

acres and was the first of the three sites, opening in the late 1950s. CCRs were sluiced into this area until 

1970 when the area was abandoned.393 A closure plan was approved in 1997, with the work completed in 

1998. Wastewater discharge is regulated under NPDES Permit No. TN0005428.394 Treated water from the 

Cumberland River is a common municipal water supply source in the area, including for the Gallatin 

Water Department which is located just over a mile downstream from the impoundments. However, no 

offsite monitoring data is available. 

On August 20, 2009, TVA’s Board of Directors’ decided to convert wet fly-ash and bottom ash handling 

systems to dry-ash handling systems at Gallatin Fossil Plan and five other coal-burning plants, to convert 

gypsum dewatering facilities, and to close ash and gypsum ponds.395

Alluvial deposits consisting of clay, silt, and very fine sand prevail across large portions of the site. The 

thickness of the alluvium is highly variable, up to 70 feet. The remaining areas are underlain by residual 

clays resulting from the in-situ weathering of the parent Ordovician-age limestone and shale formations. 

In order of descending stratigraphy, the site is underlain by the Bigby-Cannon Limestone, Hermitage 

Formation, Carters Limestone, and Lebanon Limestone.396 Several enclosed drainage basins are indicative 

 

391 Approximately 185,000 dry tons of fly ash is wet-sluiced to Fly Ash Pond E (FAP-E) each year. Approximately 

45,000 dry tons of bottom ash is wet-sluiced to BAP-A annually. There is also a set of Stilling Ponds (B, C and D), 

none of which stores CCR, that are hydraulically connected and at the same pool elevation. Pond B receives decant 

water from BAP-A, and flows to Pond B. Pond B receives decant water from FAP-E and flows into Pond D. The 

Stilling Pond outlet is located at the west end of Pond D. There are currently no dry stacking operations at the 

Gallatin Plant.

392 The surface areas reported by TVA (2009) are somewhat different from those reported by Stantec (2009). For 

BAP-A, FAP-E, and Stilling Ponds B, C, and D, the corresponding areas (in acres) are 169, 157, and 55, 

respectively. According to TVA (2009), the corresponding storage capacities of these three units (in cubic yards) are 

7,083,000, 7,100,000, and 600,000, respectively.

393 Stantec (2009). The Closed Disposal area had four cells, referred to as A, B, C, and D. In 1967, two slides 

occurred along exterior dikes adjacent to cells A and C. These two cells were drained and abandoned, but Cell B 

(middle cell) remained in operation until 1970, when disposal shifted to what was then called Area 3 (now known as 

BAP-A and FAP-E). Cell B contained water until it was drained in 1973. For a project location map and an aerial 

photograph of the impoundment, see Dewberry Consultants (2013), Appendix A, Documents 1 and 2, respectively. 

For initial information provided by the TVA about the CCR Complex, see there, Appendix A, Document 3.

394 Dewberry Cons., ibid, Appendix A, Document 12, and TDEC (2012). Discharges are through Internal 

Monitoring Point (IMP) 006 and Internal Monitoring Point 009 to Cumberland River at mile 240.5 (001 & IMP 

005), mile 242.5 (002), and mile 243.0 (004). Permit is valid between July 1, 2012 and May 31, 2017.

395 TVA (No date, presumably 2009). In recognition of these developments, TDEC included in Part III of the Plant’s 

renewed NPDES permit the provision for a Closure Plan for the existing ash ponds (TDEC, 2012, Page 57). In 

addition, TDEC has recently issued an authorization for a new TVA/Gallatin Class II Landfill (TDEC, 2014).

396 Stantec (2009). The Bigby-Cannon Limestone is confined to the higher elevations (approximate above 540 feet) 

at the site. It consists of three rock-facies types: medium-to coarse-grained limestone with phosphate pellets; a dark 

gray to brown-black microcrystalline limestone; and a cryptocrystalline dove colored limestone. The Hermitage 

Formation is primarily confined to the interior of the Odom’s Bend Peninsula, between approximate elevations 510 

and 540 feet above Mean Sea Level. The Hermitage Formation consists of silty, nodular to laminated, argillaceous 

limestone with fossiliferous and phosphatic zones and may contain calcarenite. Residuum formed by the solution 

weathering of the Hermitage Formation is typically a sandy to silty clay generally underlain by a zone of extensively 

weathered parent rock. The Carters Limestone appears between approximate elevations 445 and 510 feet and 

consists of a densely crystalline limestone with thin shale partings. In general, the Lebanon Limestone is mapped 

below elevation 445 feet and is a thin-bedded, fossiliferous limestone with thin calcareous shale partings. In general, 

the Lebanon Limestone is mapped below elevation 445 feet and is a thin-bedded, fossiliferous limestone with thin 

calcareous shale partings.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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of karst activity within the vicinity of the plant. This karst activity is associated with the upper portions of 

the Carters Limestone near its contact with the overlying Hermitage Formation.397

EIP (2010a) cites from TVA’s October 2009 Groundwater Monitoring Report an average horizontal 

seepage velocity between the disposal site and the river of approximately 0.22 ft/yr.398 The quality of the 

water in the so called Central Basin aquifer system’s carbonate rocks is considered hard and contains high 

concentrations of dissolved solids, chlorine, and iron. However, these concentrations are equal to or less 

than USEPA’s secondary maximum contaminant levels (MCLs) for drinking water.399 The Central Basin 

aquifer system is an important source of drinking water for central Tennessee, as it supplies most of the 

rural domestic wells and many public drinking wells in the region. Private residential wells occur near the 

GAF area. However, public water for Sumner County is supplied by surface water sources, and the GUF 

area is not within a state-designated Source Water Protection Area. TVA’s groundwater monitoring 

program for GAF shows shallow groundwater movement beneath the non-registered site, inactive ash 

pond, located in Quaternary age alluvial deposits. Monitoring wells range from approximately 49 to 52 

feet in depth and all are completed in the alluvium. The direction of the horizontal gradient is 

southwesterly toward the Cumberland River.400

Impact and Damage Claims: EIP (2010a) indicates that monitoring onsite around the closed ash 

impoundment found exceedances of the primary EPA Maximum Contaminant Level (MCL) and 

secondary EPA MCL (SMCL) for a variety of constituents. Beryllium and cadmium exceeded the 

primary EPA MCL in a number of onsite samples, while nickel exceeded the Tennessee state 

groundwater MCL and boron exceeded the EPA Health Advisory Level for Children. EIP (2010a) notes 

that up-gradient concentrations for these chemicals were consistently lower than down-gradient 

concentrations, and were often below the detection limit. EIP (2010a) also notes that sulfate, manganese, 

 

397 Based on historical documentation in annual reports from late 1970s that discuss sinkhole leakage in BAP-A 

through a sinkhole located in the south portion of the pond; and TVA (2012). Stantec (2010) makes reference to 

annual inspection reports indicating that pond seepage loss occurred through a sinkhole located on the north side of 

Ash Pond E in the early- to mid-1970's. This sinkhole was reportedly repaired in 1977. The inspection reports also 

indicate that pond seepage loss occurred through a sinkhole on south side of Ash Pond A also during the early- to 

mid-1970's. A circular dike was built to isolate and protect this sinkhole in 1979. In 1990, the circular dike was 

removed and the sinkhole was repaired reportedly by excavating and capping. Additionally, the recent expansion for 

Pond E was constructed over known sinkholes, which were reportedly mitigated during construction. Approximately 

ten areas were mitigated. More recently, sinkholes were identified during the 2006 expansion of the fly ash pond. 

Finally, immediately following the major rain event of May 1 and 2, 2010, a small sinkhole appeared within the low 

lying area just north of the Pond C saddle dike.

In its Phase I engineering assessment for Gallatin, Stantec Consulting Services observed that “karst bedrock 

and sinkhole activity is present plant-wide and is a concern.” Stantec therefore recommended that TVA “install 

lining systems beneath all ponds or convert to dry disposal operation.” Many sinkholes have formed at Gallatin in 

the past: From 1970-1978, all of the water put into the currently active ash pond complex drained through up to 111 

sinkholes – and the pond never reached the level of the permitted outfall.

398 This estimate is calculated by applying Darcy’s Law (v = Kh * Jh/θ) as follows: <movement beneath the 

Abandoned Ash Disposal Area occurs in Quaternary age alluvial deposits. Wells range from approximately 49 to 52 

feet in depth and all are completed in alluvial deposits. The average horizontal hydraulic gradient (Jh) in the disposal 

site vicinity is approximately 0.0192, based on the October 14 water level measurements in wells GAF-19R through 

GAF-21. The direction of the horizontal gradient is southwesterly toward the Cumberland River. The highest 

measured hydraulic conductivity in the vicinity of the disposal area is 2.2E-7cm/sec. This measurement represents 

an estimate of vertical hydraulic conductivity (Kv) since it was determined from laboratory testing of an undisturbed 

soil core. The horizontal component of hydraulic conductivity (Kh) is conservatively estimated to be about ten times 

Kv or approximately 2.2E-6cm/sec (6.2E-3ft/d). Effective soil porosity (θ) of 0.2 is assumed in estimating the 

horizontal seepage velocity (v) through the soil zone.>

399 TVA (2012).

400 Ibid.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

100

iron, and total dissolved solids (TDS) were above their SMCLs in down-gradient wells and followed 

similar pattern of having much lower values up-gradient from the impoundments. EIP (2010a) indicates 

that hydrogeologic studies indicate the shallow groundwater near the closed ash area is moving towards 

and discharging into the Cumberland River. Whereas EIP (2010a) stated that surface water monitoring 

data for the two active ponds is not available, such data are actually included in GAF’s recently issued 

NPDES Permit (TDEC, 2012). 

TVA claims401 that (i) groundwater at the power plant is monitored quarterly under a compliance 

monitoring program as identified in the current solid waste permit for the closed ash pond. Reports are 

submitted to the Tennessee Department of Environment and Conservation (TDEC). TVA samples for 

parameters dictated by TDEC (Appendix I) namely, 16 metals and fluoride. Historically, beryllium and 

nickel have exceeded the EPA MCLs in groundwater onsite. While cobalt and vanadium do not have 

MCLs, they are compared against an EPA Region IX Preliminary Remediation Goal for tap water, and 

those were exceeded. (ii) The active ash pond has a voluntary groundwater monitoring network 

addressing TDEC Appendix I parameters. To date, there have been no MCL exceedances identified. (iii) 

The groundwater is monitored for the investigation of beryllium levels in groundwater at the site showed 

that the soils contain naturally-occurring high levels of beryllium.402

According to EIP (2011), recent groundwater data have revealed additional exceedances of the MCLs for 

beryllium and cadmium, as well as exceedances of the MCL for mercury (up to 2.9 ppb) and of federal 

health-based guidelines for boron (up to 5.7 ppm), cobalt (maximum of 300 ppb, 27 times the Tap water 

Regional Screening Level), and nickel (up to 170 ppb). 403

Evaluation against Proven Damage Criteria404

 

401 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0208.

402 TVA (2012) states that TVA has been performing groundwater monitoring at GAF since 2000, and currently 

reports this data to TDEC quarterly. Monitoring locations are primarily for characterizing GAF’s inactive ash pond. 

The latest report, submitted in July 2012, represents past trends for GAF, whereas MCL exceedances were noted for 

beryllium, cadmium and nickel at compliance well GAF-19R. Beryllium concentrations at GAF-19R (and 

predecessor well GAF-19) have been elevated since monitoring began in October 2000, with no consistent trend 

upward or downward during the period of record. Elevated levels of beryllium, cadmium and nickel at GAF-19R are 

associated with unusually low pH, i.e., median pH is 4.1 at this location. By comparison, median pH values for 

compliance well GAF-20 and background well GAF-22 are 5.6 and 7.1, respectively. The unusually low pH is 

possibly the result of pyrites associated with the historical coal burned at the time ash was sluiced into the nonregistered, inactive ash pond.

403 Risky Business (2011), Page B. 5. At least some of these claims are corroborated by TVA Inspector General 

(2011), pointing to exceedance of groundwater protection standards and/or MCLs of beryllium, cadmium, nickel and 

vanadium at the Gallatin power plant in one of three to four sampled wells in one to three sampling events between 

February 2008 and October 2009.

404 ICF (2010a).

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels (MCLs) or 

other health-based standards measured in 

groundwater at sufficient distance from the waste 

management unit to indicate that hazardous 

constituents have migrated to the extent that they 

could cause human health concerns

 Onsite groundwater data exceeded primary EPA MCLs 

for cadmium and beryllium. 

 Onsite groundwater data exceeded the EPA Health 

Advisory for Children for boron and the Tennessee 

groundwater MCL for nickel.

 Onsite groundwater data exceeded EPA SMCLs for 

iron, manganese, sulfate, and TDS.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

101

Resolution: There are no administrative rulings or courts decisions pertaining to this Site. The closure 

plan for the third (and oldest) surface impoundment was approved in 1997, with the work completed in 

1998. According to EIP (2010a), in July 2010, TVA announced it would install 13 new piezometers to 

detect potential seepage from its active impoundments into the Cumberland River. The Closed 

(Abandoned) Ash Disposal Area is now subject to post-closure monitoring plan (Phase III assessment 

monitoring), which, since February 2009 involves quarterly (rather than annual) monitoring. 

TVA received official notification on February 23, 2009, that an assessment for Groundwater 

Contamination Program would be required within 90 days.405 TVA stated406 that it is working with TDEC 

to conduct assessment monitoring. A Groundwater Assessment Plan was submitted to TDEC and 

approved on April 18, 2011. TVA is now implementing the plan for the plant. This plan is intended to 

determine the source of solid waste constituents which may have impacted groundwater, the 

concentration, rate and extent of migration, and whether corrective action is needed.

In response to TDEC’s requirements in the draft renewed NPDES permit to only ‘report’ the levels of the 

monitored constituents rather than set up discharge limits, in its comments on the draft Permit, EPA 

Region 4 commented that “The NPDES permit must include technology-based effluent limits (TBELs) 

for the ash pond (outfall 001) as required by the CWA and implementing regulations.” This comment was 

seconded by EIP. EIP further recommended a list of 21 constituents, including nutrients that should be 

used to set TBELs. TDEC responded that it has determined that development of TBELS is not required 

because EPA had considered, but determined not to set numeric metals limits in the 1982 Effluent Limit 

Guidelines (ELGs).

407 However, TDEC has included in the final permit the requirement for analyses and 

reporting of the 21 constituents. In response to TDEC’s position, on July 2, 2012, a coalition of 

environmental groups filed with the Tennessee Water Quality Control Board an appeal of a pollution 

permit issued for the TVA’s Gallatin coal-fired power plant. The action claims the wastewater discharge 

permit from the TDEC does not limit toxic discharges into the water.408

 

405 TVA Inspector General (2011): Based on sampling that occurred in September 2008 as a follow-up confirmation 

of results from the August 2008 sampling. Phase III assessment monitoring, triggered when any constituent is above 

the groundwater protection standard. Phase III involves both an assessment of groundwater quality and development 

of corrective actions. (TN Rule 1200-1-7, Solid Waste Processing and Disposal). According to Inspector General 

(2011), the TVA Gallatin Plant decided that the likely corrective action would be to implement a full cap for the 

closed pond.

406 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0208.

407 TDEC also stated that “the U.S. Environmental Protection Agency reviewed the permit and had no objections to 

its content as issued.” Note, however, that these ELGs have been superseded the following year by EPA’s Steam 

Electric Power Generating ELGs proposed Rule (EPA, March 2013): EPA (2009) and EPA (2013).

408 Battle heats up over coal-fired energy permit in Tennessee, July 6, 2012, Legal Newsline:

http://legalnewsline.com/news/236644-battle-heats-up-over-coal-fired-energy-permit-in-tennessee; and TDEC’s 

NPDES Permits database, TVA Gallatin Fossil Plant Permit TN0005428, Appeal Letter: http://environmentonline.state.tn.us:8080/pls/enf_reports/f?p=9034:34001:14607943728797.

 No offsite groundwater data are available.

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage 

to human health or the environment (e.g., 

ecological damage)

 None

Criterion 3: Where there has been an 

administrative ruling or court decision with an 

explicit finding of specific damage to human 

health or the environment

 None
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

102

USWAG claims that this Site does not meet the criteria for a damage case.409

ICF (2010a) Rationale: Potential Damage. <Groundwater exceedances of the primary EPA MCL for 

cadmium and beryllium, the EPA Child Health Advisory for boron, the Tennessee groundwater MCL for 

nickel, and the EPA SMCL for iron, sulfate manganese, and TDS have been found onsite. There are no 

administrative rulings or court decisions associated with the site.>

References

EIP (2010a): In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their 

Environment, Thirty-nine New Damage Cases of Contamination from Improperly Disposed Coal 

Combustion Waste, Case #33, Environmental Integrity Project, EarthJustice and Sierra Club, August 26, 

2010. 

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

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

Appendix C, Case #33. ICF, 10/2010.

Stantec (2009): TVA Disposal Facility Assessment, Gallatin Fossil Plant. Accessed Online November 

2012.

http://www.tennessee.gov/environment/kingston/pdf/tva/StantecGallatinAnalysisE.pdf

http://www.tva.gov/power/stantec/tn/rpt_001_tn_report_171468118.pdf (Report)

http://www.tva.gov/power/stantec/tn/rpt_007_appndx_e_gaf_171468118.pdf (Appendix)

http://www.tva.gov/power/stantec/tn/rpt_002_all_11x17_aerials_171468118_tn.pdf (Aerial Image)

Stantec (2010): Report of Geotechnical Exploration and Slope Stability Evaluation: Ash Pond / Stilling 

Pond Complex — Gallatin Fossil Plant Gallatin, Tennessee, May 27, 2010. Accessed Online August 

2013.

http://www.tva.com/ power/stantec2/GAF/GAF-GE-100527%20(rpt_001_175559018).pdf.

TVA (2009): TVA Response to a Request for Information under CERCLA Section 104(e) for Ash 

Management Units, Gallatin Fossil Plant, March 25, 2009. Accessed Online May 2012.

http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys/tva-fossil.pdf

EPA (2009): Steam Electric Power Generating Point Source Category: Final Detailed Study Report, EPA 

821-R-09-008, October 2009. Accessed Online August 2014. 

http://water.epa.gov/scitech/wastetech/guide/steam-electric/index.cfm#point4.

TVA (No date, presumably 2009): TVA’s Conversion of Wet Ash and Gypsum to Dry Storage. TVA. 

Accessed Online August 2014.

http://www.tva.gov/news/Kingston/dry_ash.pdf

Risky Business (2011): Coal Ash Threatens America’s Groundwater Resources at 19 More Sites. EIP 

Report, Dec. 13, 2011. Accessed Online May 2012.

http://www.environmentalintegrity.org/documents/121311EIPThirdDamageReport.pdf

 

409 Comment to the 2011 NODA docket, EPA-HQ-RCRA-2011-0392-0211: “This case does not meet the criteria for 

a damage case because the allegations are only for on‐site groundwater. The information provided for the site does 

not contain any documented evidence of off‐site groundwater monitoring data or off‐site groundwater monitoring 

data showing exceedances of specified health‐based criteria.”
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

103

TVA Inspector General (2011): Final Report – Inspection 2009-12991 – TVA's Groundwater Monitoring 

at Coal Combustion Products Disposal Areas, TVA Office of the Inspector General Inspection Report, 

June 21, 2011. Accessed Online November 2012.

http://oig.tva.gov/reports/PDF/11rpts/2009-12991.pdf

TVA (2012): Installation of Emission Control Equipment and Associated Facilities, Gallatin Fossil Plant, 

Sumner County, Tennessee, Draft Environmental Assessment, Project Number: EA2012-05, prepared by 

Tennessee Valley Authority, October 2012. Accessed Online February 2013.

http://www.tva.com/environment/reports/gallatin_APCE/index.htm

TDEC (2012): NPDES Permit No. TN0005428, TVA - Gallatin Fossil Plant, Gallatin, Sumner County, 

Tennessee. State of Tennessee Department of Environment and Conservation, Division of Water 

Pollution Control, May 31, 2012. Accessed Online August 2014.

http://environmentonline.state.tn.us:8080/pls/enf_reports/f?p=9034:34051:15844935212216::NO:34051:P34051_PERMIT_

NUMBER:TN0005428

Dewberry Consultants (2013): Coal Combustion Residue Impoundment Round 11 - Dam Assessment 

Report, Gallatin Fossil Plant Ash Pond/Stilling Pond Complex, TVA, Gallatin, Tennessee. Prepared by 

Dewberry Consultants LLC, Fairfax, Virginia, April 2013. Accessed Online July 2014.

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

EPA (2013): Steam Electric Power Generating Effluent Guidelines, Proposed Rule, April 2013. Accessed 

Online August 2014.

http://water.epa.gov/scitech/wastetech/guide/steam-electric/index.cfm

TDEC (2014): Registration Authorizing Solid Waste Disposal Activities in Tennessee, issued to TVA, 

Registration No. IDL 83-0219. Tennessee Department of Environment and Conservation, Division of 

Solid Waste Management, June 30, 2014. Accessed Online August 2014.

Final Permit for TVA Gallatin Fossil Plant Class II ... - TN.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

104

PTb52. John Sevier Fossil Plant, Tennessee Valley Authority (TVA), Rogersville, Hawkins 

County, TN

Type: Dry Fly Ash Disposal Area and Surface Impoundments.

Background and Description: The John Sevier Fossil Plant (JSF)410 site is located along the Holston 

River (River Mile 106), on the 2,816 acres Cherokee Reservoir411 in Rogersville, Tennessee. In the 1950s, 

The Tennessee Valley Authority (TVA) built an active 90-acre unlined set of contiguous surface 

impoundments for disposal of coal combustion residuals (CCR) from the co-located coal plant. Sluicing

of fly ash stopped in 1979,412 and since then dry bottom ash and fly ash have been stacked on top of the 

existing 90-acre dewatered ash pond.413 Approximately 215,000 tons of dry fly ash is collected in silos 

each year and hauled to this permitted, unlined Dry Fly Ash Disposal Area.414 On May 26, 1973, a portion 

of the north dike, in what used to be Pond E (presently, the Dry Fly Ash Disposal Area) failed into the 

Holston River.415

Since 1979, The JSF has been also operating another unlined, 41-acre CCR pond, the unlined Bottom Ash 

Disposal Area 2.416 Twenty-six acres of the pond are an active disposal site while the southeast portion of 

pond has become an inactive bottom ash dredge cell.417 Internal dike was constructed out of ash to 

separate this area from the pond; however, there is no landfill permit for this impoundment. Currently, the 

 

410 JSF has four coal-fired generating units with a summer net capability of 704 MW. Construction began in 1952 

and was completed in 1957. Units/nameplate capacity and in-Service dates: 200 MW (1955), 200 MW (1955), 200 

MW (1956), 200 MW (1957). The plant consumes about 5,700 tons of coal a day, using (as of 2009) low-sulfur coal 

from mines in Virginia. The average ash content of the coal was 11.6 percent. On August 20, 2009, TVA’s Board 

of Directors decided to convert John Sevier’s waste management by switching from wet bottom ash handling to dry 

storage. (TVA, undated, presumably 2009). This intent was overtaken by TVA’s plan to retire two JSF units and to 

remove from service the remaining two units by December 31, 2012. The two units removed from service will be 

controlled by adding scrubbers to reduce sulfur-dioxide emissions and selective catalytic reduction systems to 

reduce nitrogen-oxide emissions, converted to renewable biomass, or retired:

http://www.tva.com/sites/johnsevier.htm. The retired units were replaced, as of April 30, 2012, by the new threeturbine natural gas fueled 880MW John Sevier Combined Cycle Plant, adjacent to the coal plant. For the 

Environmental Assessment for the upcoming Combined Cycle Plant, see TVA (2010).

411 The Cherokee Reservoir, a popular fishing and recreation area, is the most downstream and largest impoundment 

of the Holston River. TVA operates a “reservation” surrounding JSF that hosts a campground for fishermen, soccer 

fields, a walking track, and boating ramps.

412 According to TVA (2009), the switch from wet- to dry-handling occurred in 1986. Although JSF collects most of 

the fly ash dry, it has retained the capability to sluice fly ash to the bottom ash pond complex. Fly ash is sluiced 

during unit startup and during operational problems that compromise the reliability of the dry fly ash collection 

system. As of 2009, the dry fly ash stacking area had approximately 1.6 million cubic yards of disposal capacity 

remaining. Based on the projected fly ash production rate of 225,000 cubic yards per year, if no fly ash were 

marketed, this would be enough disposal capacity until 2017.

413 Pond J, inferred to be part of the original impoundments series, was closed in 1995 under a closure/post-closure

plan issued by the TDEC Division of Solid Waste Management (TVA, 2006).

414 Stantec (2009). About 100,000 dry tons of fly ash is marketed offsite to the concrete industry. According to 

ASTSWMO’s comment to the 2011 NODA (EPA-HQ-RCRA-2011-0392-0271), Dry Fly Ash Disposal Area has a 

Class II permit (IDL #37-104-0097). According to TVA Inspector General (2011), 36 parameters are monitored 

semi-annually. Liner information is from Dewberry & Davis, ibid, Appendix B, Document 15.

415 Stantec, ibid.

416 According to TVA (2009), the storage capacity of the 90-acres and the 41-acres impoundments is 3,800,000 

cubic yards and 1,200,000 cubic yards, respectively. Liner information from Dewberry & Davis, ibid, Appendix B, 

Document 14.

417 According to TVA (2009), the bottom ash was collected in this area by Appalachian Products, and sold for use in 

concrete block manufacturing.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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Bottom Ash Disposal Area 2 receives sluiced bottom ash, intermittent fly ash (sluiced to a separate trench 

for settlement), and discharges from the Coal Yard Runoff Pond and Chemical Treatment Pond. 

Approximately 20,000 dry tons per year of bottom ash is wet-sluiced to this pond.418 The fly ash/bottom 

ash split is about 93/7 percent.419

Auxiliary ponds include the Waste Stabilization Pond (WSP)420 and two Metal Cleaning Treatment Ponds 

(MCTPs), the copper pond, and the iron pond. Runoff from the Dry Fly Ash Disposal area first drains to 

the sediment pond, then to a wetland, then to the stilling pond, where it evaporates or overflows 

intermittently through permitted storm water discharge point Outfall F-16A to the Holston River.421

Wastewater discharge into the Holston River is regulated under NPDES Permit No. TN0005436.422

JSF rests on the Holston River floodplain. Topography at JSF currently slopes and drains to the Holston 

River, Dodson Creek, and to a stream flowing generally northeastward across the eastern end of disposal 

area and sedimentation pond. Much of the site is underlain by alluvium and terrace deposits varying in 

thickness from less than five feet along the tributary stream banks to more than 30 feet adjacent to the 

river. These soils consist of sands, silts, and gravels with few interspersed cobbles. The underlying 

bedrock consists of the Ordovician age Sevier Shale Formation, a silty- to sandy-calcareous shale with

thin limestone layers and lenses of siltstone and sandstone. Solution weathering and the development of 

karst features may occur in the more calcareous zones of the bedrock unit.

Groundwater is derived from infiltration of precipitation through the soil overburden and from lateral 

groundwater inflow originating in upland recharge areas to the southeast. Groundwater originating at JSF 

discharges to the Holston River and its local tributaries, Dodson Creek and Polly Branch.423 The principal 

aquifer in the site locality is the Sevier shale consisting of thinly bedded, slightly calcareous shale with 

inter-bedded limestone layers. The principal aquifer in the site locality is the Sevier shale consisting of 

thinly bedded, slightly calcareous shale with inter-bedded limestone layers. Faulting and jointing has 

provided limited access for circulating groundwater as evidenced by iron staining along joints and 

fractures and moderate weathering of some layers. However, the absence of thick sections of pure 

limestone has precluded cavity development. Because of limited secondary porosity and low rock matrix 

permeability, the upper portion of the Sevier shale in the site locality is generally capable of supplying 

only small domestic and farm water demands.424

Eighteen private water-supply wells are within one mile of JSF, including one residential well (Well No. 

1) located on property now owned by TVA,425 and most wells obtain water from the Sevier shale or 

possibly the alluvial deposits. All off-site private wells are located either up-gradient of the disposal site 

 

418 Stantec (2009). TVA has represented that it would convert its remaining CCR at JSF to dry handling by October 

1, 2016.

419 TVA (2009).

420 The WSP receives wastewater from the oil-water separator low-volume sump, coal pile storm water runoff, and 

water treatment plant wastes. The WSP also receives storm water runoff or wash down from various areas and 

domestic sewage from the plant’s septic system, a mixture of groundwater and leachate from the dry fly ash landfill 

(DFAL) leachate collection system.

421 TVA (2006). For a vicinity map around the JSF and an aerial view of the JSF Plant, see Dewberry & Davis 

(2013), Figures 2.1a and Figure 2.1b, respectively; Table 2.1 presents size information about the active disposal 

areas.

422 According to Dewberry & Davis, ibid, Appendix A, Document 1, this NPDES Permit is valid between 5/20/2011 

and 6/30/2014. A modified NPDES permit was issued to TVA JSF Plant by TDEC/Division of Water Resources on 

Dec. 3, 2012 (TDEC, 2012).

423 TVA (2006), Figure 3-2.

424 TVA (2009).

425 Ibid, Figure 3-2.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

106

or on the opposite side of Dodson Creek, which is located beyond the western perimeter of the gypsum 

disposal area. A public water supply intake on the Holston River is located less than two miles 

downstream from the Plant.426 Groundwater has been evaluated onsite at monitoring wells which are 

located between the impoundment and the river.427 No offsite groundwater or surface water data are 

available.

Historical releases of mercury from the Saltville, Virginia, chlor-alkali plant, located more than 100 miles 

upstream of the JSF site into the North Fork of the Holston River for an extended period of time428 has 

contaminated surface water and sediments of both the North Fork Holston and Holston Rivers. Since the 

1970s, TVA has measured elevated levels of mercury in Cherokee Reservoir. A 2001-2002 USEPA 

investigation of the North Fork Holston and Holston Rivers and an associated ecological risk assessment 

reported results indicating elevated mercury levels in sediment cores collected in front of the JSF 

detention dam, downstream from the JSF intake channel.429

Impact and Damage Claims: EIP (2010) indicates that levels of cadmium exceeded the primary EPA 

Maximum Contaminant Level (MCL) in onsite groundwater wells located on the banks of the Holston 

River (6.8 μg/L and 6 μg/L, respectively, in the May 2009 and December 2008 samples from well W31). 

Additionally, aluminum, manganese, and sulfate exceeded EPA SMCLs in onsite groundwater, and boron 

and strontium exceeded various other benchmarks.430 EIP (2010) indicates that according to TVA, the 

Plant’s impoundments are up-gradient from the Holston River and its local tributaries and groundwater 

from the site discharges directly into these surface waters.431

In Tennessee, groundwater that enters a surface water body is subject to surface water criteria. EIP (ibid) 

indicates that cadmium levels in groundwater wells located along the banks of the Holston River 

exceeded both chronic and acute EPA Water Quality Criteria (WQC) levels for freshwater aquatic life, 

 

426 The Persia Water Utility, serving a local population of 4,395.

427 TVA currently monitors eight wells at John Sevier, mainly around the dry fly ash disposal area. Wells along the 

north dike of the dry fly ash disposal area show unsafe concentrations of boron, manganese, and sulfate, and in some 

cases cobalt (wells W28 and W30). When compared to up-gradient background water quality, all of the wells around 

the dry fly ash disposal area have shown significantly elevated concentrations of boron, sulfate, and in recent years -

many other contaminants. Monitoring around the bottom ash disposal pond, Area 2, has been recent and limited; 

with the exception of manganese, concentrations of most pollutants were below health-based thresholds.

428 Until the chlor-alkali plant was closed in 1972. On September 8, 1983, the Saltville site was added to the 

Superfund National Priorities List. Mercury’s high metal partition coefficient (also known as the sorption 

distribution coefficient, Kd) strongly favors mercury’s adsorption to sediment particles. For additional information 

on the downstream mercury impact associated with the Saltville site, see TVA (2005).

429 TVA (2009).

430 According to EIP (2010), arsenic and manganese exceed EPA National Recommended Water Quality Criteria 

(WQC) for human health, and cadmium levels exceed both chronic and acute levels for freshwater aquatic life. 

Boron levels of 18,000 μg/L are far above EPA Superfund Removal Action Levels of 3,000 μg/L and 900 μg/L and 

exceed both of EPA‘s Drinking Water Health Advisory levels of 3,000 and 6,000 μg/L. In addition, strontium 

measured at 5,300 μg/L exceeds EPA‘s health advisory level of 4,000 μg/L.

431 For example, groundwater monitoring reports from May 2009 show arsenic levels at 2.2 μg/L, more than 15 

times higher than EPA‘s human health criteria for fish consumption; and manganese levels at 5700 μg/L, over 50 

times higher than EPA‘s human health criteria for fish consumption. Boron levels of 18,000 μg/L are far above EPA 

Superfund Removal Action Levels (RAL) of 3,000 μg/L and 900 μg/L and exceed EPA‘s Drinking Water Health 

Advisory levels of 3,000 and 6,000 μg/L. In addition, strontium measured at 5,300 μg/L exceeds EPA‘s health 

advisory level for strontium of 4,000 μg/L.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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and that arsenic and manganese exceeded EPA’s human health criteria for consumption of fish.

According to TDEC (2012), there were WQC exceedances of several metals.432

TVA claims433 that: (i) The pollution figures in EIP (2010) are accurate for the dates mentioned; however, 

more recent monitoring results show cadmium levels below the MCL of 5μg/L. Investigation of possible 

reasons for the fluctuating cadmium levels in the one groundwater monitoring well resulted in a 

determination that laboratory interference issues were the cause of false exceedances being reported. This 

interpretation is upheld by the Tennessee DSWM, as presented by ASTSWMO.434 (ii) All private water 

wells within a mile of the power plant are up-gradient of it. (iii) EIP (2010) applies EPA “human health 

criteria for fish consumption” to arsenic and manganese groundwater data. Those surface water criteria 

are designed to reduce the cancer risk for citizens who regularly consume fish. The incidence of humans 

regularly consuming fish living in groundwater is most likely non-existent.435 (iv) EIP (2010) justifies 

application of surface water quality criteria to groundwater by citing Tennessee Water Quality Criteria 

regulations. In fact, TDEC’s regulation states that when groundwater enters a stream it becomes surface 

water and the clear intent is that surface water criteria are applicable at that time, not while the water still 

is in the ground. 

 

432 According to TDEC (2012, virtual pages 62-63 and Table 4), for the monitoring period starting June 30, 2008, 

effluent data from Outfall 001 (which discharges, among others, coal ash wastewater) are as follows: for arsenic, 

seven samples exceeded the chronic water quality criteria of 0.010 mg/L, with the highest value at 0.035 mg/L. For 

selenium, four data points exceeded the chronic water quality criteria of 0.005 mg/L and one data point exceeded the 

acute concentration of 0.020 mg/L (for both arsenic and selenium, monitoring was quarterly. One data point for total 

chromium (7/31/2010 – 0.012 mg/L) exceeded the chronic water quality criteria for chromium VI (0.011 mg/L; for 

chromium, monitoring was annual); and the application value for aluminum (0.480 mg/L) exceeded the chronic 

water quality criteria for aluminum (0.087 mg/L) but was below the acute water quality criteria (0.750 mg/L).

433 Comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0208.

434 ASTSWMO’s comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0271, and TVA 

Inspector General (2011).

435 ASTSWMO’s comment to the October 2011 NODA: EPA-HQ-RCRA-2011-0392-0271: The Tennessee DSWM 

responds to EIP’s (2010) statements about arsenic having exceeded EPA National Recommended Water Quality 

Criteria (WQC) for human health (groundwater monitoring reports from May 2009 show arsenic levels at 2.2 μg/L, 

“more than 15 times higher than EPA‘s human health criteria for fish consumption”), that arsenic was actually 

detected at 2.2 ug/L in one monitoring well, which is merely one fifth of the groundwater protection standard of 10 

ug/L, and groundwater concentration levels cannot be compared to a standard for the maximum concentration of 

arsenic in fish tissue for human consumption. The Tennessee DSWM concedes, however, that manganese was 

detected at 5,700 ug/L in one monitoring well as listed in the May 2009 TVA Report, above the Regional Screening 

Levels for tap water of 880 ug/L. DSWM states, however, that EIP (2010) errs in comparing the concentration of 

manganese detected in a groundwater sample to a standard for the maximum concentration of manganese in fish 

tissue for human consumption.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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ASTSWMO cites the Tennessee DSWM in addressing EIP’s (2010) claims about exceedances of 

aluminum, sulfate, boron, and strontium.436 Finally, USWAG claims that this site does not meet the 

criteria for a damage case.437

Evaluation against Proven Damage Criteria438

Other Considerations: There are 18 private wells located within a one mile radius of the surface 

impoundment.

Resolution: The Class II Disposal Facility located at TVA’s JSF has impacted the groundwater. The 

facility was placed into Phase II Ground Water Assessment Monitoring under Rule 1200-01-07-.04(7)(a)6 

due to statistically significant increases of alkalinity, pH, specific conductance, and strontium over 

 

436 EPA-HQ-RCRA-2011-0392-0271: To the statement that aluminum is 8 times the highest SMCL, the Tennessee DSWM 

responds that the highest aluminum level detected in a ground water well in the last two years has been 880 μg/L. The Regional 

Screening Level for tap water for aluminum is 37,000 μg/L. However, there is no MCL for aluminum listed in Appendix III of Rule 

1200-1-7-.04, and EPA does not enforce the aluminum SMCL [0.05 to 0.2 mg/L (50 to 200 μg/L)], nor other SMCLs 

(http://www.epa.gov/safewater/consumer/2ndstandards.html). (ii) To the statement that sulfate was measured at 7 times higher than 

EPA‘s SMCL in groundwater wells (the highest level of sulfate reported in the December 2008 TVA Report was 1,300,000 μg/L), 

the Tennessee DSWM responds that there is no MCL for sulfate listed in Appendix III of Rule 1200-1-7-.04, and that EPA’s SMCL 

of 250 mg/L (250,000 μg/L) is a non-mandatory water quality standards which is not EPA-enforced. (iii) To the statement that the 

groundwater monitoring reports from May 2009 show boron levels of 18,000 μg/L, far above EPA Superfund Removal Action 

Levels (RAL) of 3,000 μg/L and 900 μg/L, and exceeding EPA‘s Drinking Water Health Advisory levels of 3,000 and 6,000 μg/L, 

the Tennessee DSWM responds that there is no MCL for boron listed in Appendix III of Rule 1200-01-07-.04. Boron was detected 

at 18,000 μg/L in one monitoring well (W 31) as listed in the May 2009 TVA Report and was above the Regional Screening Levels

for tap water of 7,300 μg/L. Boron has been and is above the Regional Screening Levels for tap water of 7,300 μg/L in the most 

recent sampling on April 20, 2011 in monitoring well W 31. However, boron is not listed as a constituent in Appendix II of Rule 

1200-01-07, and the well is subject to assessment monitoring as required by state regulations. (iv) Finally, To EIP’s (2010) 

statement that strontium was measured at 5,300 μg/L and exceeds EPA’s health advisory level for strontium of 4,000 μg/L,

the Tennessee DSWM responds that strontium was detected at 5,300 μg/L in one monitoring well as listed in TVA 

December 2008 Report, but does not exceed the Regional Screening Levels for tap water of 22,000 μg/L.

437 Comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211):“This case does not meet the criteria 

for a damage case because the allegations: (1) do not contain any documented evidence of off‐site groundwater 

monitoring data or off‐site groundwater monitoring data showing exceedances of specified health‐based criteria; and 

(2) there is no evidence provided of any testing or scientific studies of surface waters (i.e., Holston River) to support 

any allegation of ecological damage.”

438 ICF (2010a).

Criteria Evaluation

Criterion 1: Documented exceedances of primary 

maximum contaminant levels (MCLs) or other healthbased standards measured in groundwater at sufficient 

distance from the waste management unit to indicate that 

hazardous constituents have migrated to the extent that 

they could cause human health concerns

 Onsite groundwater data exceeded the primary 

EPA MCL for cadmium. 

 Onsite groundwater data exceeded the EPA 

SMCLs for aluminum, manganese, and sulfate. 

 No offsite groundwater data are available.

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage to human 

health or the environment (e.g., ecological damage)

 Cadmium, arsenic, and manganese levels in 

groundwater wells located on the banks of the 

Holston River exceeded EPA WQC. 

Criterion 3: Where there has been an administrative 

ruling or court decision with an explicit finding of specific 

damage to human health or the environment

 None
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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background on April 5, 2007, and as of the comment’s date remains under Assessment Monitoring. 439

The monitoring system consists of one up-gradient and five down-gradient monitoring wells that are 

sampled on a semi-annual basis. The ground water samples are analyzed for inorganic Appendix II 

constituents as well as other constituents required by the permit.440

 Concerning EIP’s (2010) statement that leachate from the CCR disposal area discharges directly into the 

Holston River, the Tennessee DSWM responded441 that between 1998 and recently, TVA installed a 

leachate collection system approximately 2,500 feet in length adjacent to the Holston River, which runs 

almost the entire length of the embankment. Once collected, the leachate is first pumped into the waste 

stabilization pond, then into the surface impoundment before being discharged under an NPDES permit. 

TVA is required to report semi-annually the amount of leachate collected and the analytical results of a 

sample of the leachate. The leachate is analyzed for the same constituents under the facility’s groundwater 

monitoring program. Additionally, during 2008-2009, TVA installed a geocomposite liner system and 

leachate collection system over about half of the existing ash disposal area where disposal operations will 

continue. TVA anticipates that the remainder of the site will undergo closure in less than two years. A 

lined leachate collection pond was constructed: a gravity line transports the leachate to the waste 

stabilization pond from where it is pumped into the surface impoundment and discharged under an 

NPDES permit.442

ICF (2010) Rationale: Potential Damage. <Groundwater exceedances of the primary EPA MCL for 

cadmium have been found on site. While groundwater wells located on the banks of the Holston River 

exceeded EPA WQC for surface waters, there is no scientific study that provides documented evidence of 

 

439 Comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0271, and TVA Inspector General 

(2011). The exceedance occurred in a confirmation sampling event that took place on December 8, 2006.

440 The results are compared to ground water protection standards (GWPSs) which are the higher of MCLs listed in 

Appendix III of Rule 1200-1-7-.04 or statistically determined upper prediction limits (UPLs). If an MCL is not listed 

in Appendix III of Rule 12001-1-7-.04, then the DSWM used the tap water value in the Region 9 PGRs Tables until 

the updated EPA Regional Screening Level Tables were published in December of 2009. The updated EPA 

Regional Screening Level Tables can be found at: http://www.epa.gov/region09/superfund/prg/index.html.

441 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0271.

442 According to Tennessee Clean Water Network et al., (2011), on May 27, 2011, a consortium of citizens groups 

submitted a petition for statutory appeal to the Tennessee Water Quality Control Board concerning the intent of 

TDEC’s Division of Water Pollution Control to renew TVA JSF’s NPDES Permit TN 0005436. This Permit 

authorizes the power plant to discharge 5.77 MGD of CCR wastewater to Polly Branch, and 667 MGD of heated 

(970F), once-through cooling water to the Holston River. The Petitioners claim that in issuing the Permit, TDEC has 

committed multiple violations of the Clean Water Act, the Tennessee Water Quality Control Act, and implementing 

regulations. (i) Although the Permit imposes water quality-based effluent limits (WQBELs) for arsenic and 

selenium, these limits are insufficient to protect water quality because they do not become effective for 29 months; 

the Permit provides no interim measures to protect water quality, aside from TVA’s discretionary use of Best 

Management Practices; and TVA eventually may avoid these WQBELs entirely by rerouting the outfall of its 

settling pond. (ii) The Permit’s daily maximum WQBEL for arsenic is double the allowable standard. (iii) The 

Permit fails to impose a WQBEL for mercury, despite the fact that the receiving waters and the surrounding 

reservoir have been impaired by mercury pollution for years. (iv) Although TDEC is obligated to set stringent limits 

that consider the reduction or elimination of pollutants that can be achieved by available and affordable 

technologies, the Permit does not evaluate alternative technologies. (v) The Permit fails to impose numeric 

technology-based effluent limits (TBELs) on metals or other nonconventional pollutants or to subject the undefined 

future BMPs to public notice and comment. By failing to consider alternative technologies and calculate numeric 

TBELs, the Permit fails to demonstrate the WQBELs for arsenic and selenium are more stringent that the 

appropriate TBELs would be. Finally, (vi) the Permit provides an unjustified thermal variance, which will allow the 

plant to continue to discharge very hot once-through cooling water into the Holston River without assuring that such 

discharges will protect aquatic life.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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damage to human health or the environment. There are currently no regulatory corrective actions, 

administrative rulings, or court decisions associated with the site.>

References

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

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #28. Environmental 

Integrity Project and Earthjustice. February 24, 2010.

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

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

Appendix B, Case #28. ICF, 10/2010.

Stantec (2009): Tennessee Valley Authority (TVA) Disposal Facility Assessment Phase 1 Plant Summary 

John Sevier Fossil Plant (JSF), June 2009. Accessed Online April 2012.

http://www.state.tn.us/environment/kingston/pdf/tva/StantecJohnSevierAnalysisF.pdf

TVA (2009): Facility Waste Unit information provided by TVA in response to EPA’s surface 

impoundments structural integrity information collection letter, March 25, 2009. Accessed Online April 

2012.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys/tva-fossil.pdf

Tennessee Clean Water Network et al., (2011): Petition for Statutory Appeal before the Tennessee Water 

Quality Control Board in the Matter of Tennessee Department of Environment and Conservation Division 

of Water Pollution Control NPDES Permit Number TN0005436, Tennessee Clean Water Network, Sierra 

Club, and Southern Alliance for Clean Energy, Petitioners, May 27, 2011. Accessed Online November 

2012.

http://www.tcwn.org/sites/default/files/John%20Sevier%20NPDES%20Appeal%20Petition.pdf

OR: 

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CB0QFjAA&ur

l=http%3A%2F%2Fwww.southeastcoalash.org%2Fwp-content%2Fuploads%2F2012%2F05%2FJohnSevier-NPDES-Appeal-Petition.pdf&ei=rdzkU4CxPNLyQSFnYIw&usg=AFQjCNENkK8nVHJh3ticn554mSVKOmoB3g&bvm=bv.72676100,d.aWw

TVA Inspector General (2011): Final Report – Inspection 2009-12991 – TVA's Groundwater Monitoring 

at Coal Combustion Products Disposal Areas, TVA Office of the Inspector General Inspection Report, 

June 21, 2011. Accessed Online November 2012.

http://oig.tva.gov/reports/PDF/11rpts/2009-12991.pdf

TVA (2010): John Sevier Fossil Plant Addition of Gas-Fired Combustion Turbine/Combined-Cycle 

Generating Capacity and Associated Gas Pipeline, Hawkins County, Tennessee, Environmental 

Assessment, Project Number 2009-37, Tennessee Valley Authority, March 2010. Accessed Online 

February 2013.

http://www.tva.gov/environment/reports/johnsevier_ct/ea.pdf

TVA (2009): Installation of Flue Gas Desulfurization System on John Sevier Fossil Plant, Hawkins 

County, Tennessee, Draft Environmental Assessment, Project Number 2006-104, Tennessee Valley 

Authority, May 2009. Accessed Online February 2013.

http://www.tva.gov/environment/reports/john_sevier_scrubber/draft_ea_for_release.pdf
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

111

TVA (2005): John Sevier Fossil Plant (JSF) Intake Debris Removal, Hawkins County, Tennessee, 

Environmental Assessment, Project Number 2005-7, Tennessee Valley Authority, December 2005. 

Accessed Online February 2013.

http://www.tva.gov/environment/reports/johnsevier/ea.pdf

TVA (2006): John Sevier Fossil Plant Units 1 through 4 Control Systems for Reduction of Nitrogen 

Oxides, Hawkins County, Tennessee, Final Environmental Assessment, Project Number 2004-100, 

Tennessee Valley Authority, March 2006. Accessed Online February 2013.

http://www.tva.gov/environment/reports/sevier_fossil/ea.pdf

TVA (No date, presumably 2009): TVA’s Conversion of Wet Ash and Gypsum to Dry Storage. TVA. 

Accessed Online August 2014.

http://www.tva.gov/news/Kingston/dry_ash.pdf

TDEC (2012): NPDES Permit No. TN0005436, TVA - John Sevier Fossil Plant, Rogersville, Hawkins 

County, Tennessee. Tennessee Department of Environment and Conservation Division of Water 

Resources, December 2, 2012. Accessed Online August 2014.

http://environmentonline.state.tn.us:8080/pls/enf_reports/f?p=9034:34051:7342819446053::NO:34051:P34051_PERMIT_N

UMBER:TN0005436

Dewberry & Davis (2013): Coal Combustion Residue Impoundment Round 11 - Dam Assessment 

Report, John Sevier Fossil Plant, Ash Basin Dikes. Tennessee Valley Authority, Rogersville, Tennessee.

Prepared by Dewberry & Davis, LLC, Fairfax, Virginia, April 2013. Accessed Online July 2014.

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

PTb53. Johnsonville Fossil Plant, Tennessee Valley Authority (TVA), New Johnsonville, 

Humphreys County, TN

Type: Surface Impoundments and Landfills.

Background and Description: The Johnsonville Fossil Plant (JOF), located about 65 miles west of 

Nashville in west-central Tennessee, opened in 1951. It has 10 coal generating units and is the oldest coal 

plant in Tennessee.443 The plant lies on the east bank of the Tennessee River and near Kentucky Lake. 

 

443 JOF uses Powder River Basin coal, and has a summer net capability of 1,206 MW (and nameplate capacity of 

1,485 MW). Units and in-service dates are as follows: 125 MW (1951), 125 MW (1951), 125 MW (1952), 125 MW 

(1952), 147 MW (1952), 147 MW (1953), 173 MW (1958), 173 MW (1959), 173 MW (1959), and 173 MW (1959). 

The plant consumes approximately 9,600 tons of coal per day. JOF Units 1 through 4 also provided steam to a 

nearby DuPont plant in a co-generation configuration (the only TVA coal-fired cogeneration facility). JOF burns 

Illinois basin and Colorado low-sulfur bituminous coal and River Powder Basin sub-bituminous coal (TDEC, 2011, 

virtual page 66). On August 20, 2009, TVA’s Board of Directors decided to convert JOF’s fly ash and bottom ash 

wet handling to dry storage (TVA, No date, presumably 2009). However, this issue became moot once four JOF 

generation units (Units 7-10) were idled effective March 1, 2012: http://www.tva.com/sites/johnsonville.htm, the 

first step in implementing the legal settlement announced April 14, 2011 with several states over air quality 

concerns. Under this settlement, TVA agreed to shutter all 10 coal-fired units at the JOF Plant: six units, no later 

than by December 31, 2015, and four additional units - no later than by December 31, 2017:

http://www.epa.gov/compliance/resources/decrees/civil/caa/tvacoal-fired-cd.pdf. However, to address operational 

challenges and reduce costs, TVA was planning to retire Units 5-6 by October 1, 2012:

http://generationhub.com/2012/05/07/tva-idles-four-johnsonville-coal-units-in-march-ta. As of August 2014, these 

generation units were still operating.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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Kentucky Lake is the largest artificial lake in the Eastern United States and a major recreational 

destination. Tennessee Valley Authority (TVA), the operator, has four ash disposal areas at this plant.444

Three units have all been closed (the 35-acre Dredged Pond East of Gas Turbine Area 5, a former pond 

for dredged ash;445 the 95-acre South Railroad Loop Ash Disposal area 4, a former landfill;446 and the 45-

acre unlined ash pond, North Abandoned Ash Disposal Area 1, also known as Area A).447 The fourth area 

is an 87-acre unlined, wet sluiced coal combustion residual (CCR) disposal area known as Areas 2 & 3, 

which is located on a 125-acre man-made island in Kentucky Lake on the Tennessee River.448 Notable 

 

444 Some disposal takes place offsite, some 8 miles southwest of JOF. On May 22, 2009, TVA issued a supplemental 

environmental assessment and finding of no significant impact (FONSI) for continuing disposal of coal ash at the 

Trans-Ash Inc. - managed Bivens Industrial Park (BIP), near Camden, Benton County, Tennessee. The existing 

capacity for permitted disposal of coal ash at BIP was exhausted on September 30, 2008. TVA’s preferred 

alternative is to expand the ashfill at BIP by 20.6 acres to accommodate approximately 2.2 million cubic yards of

additional coal ash from JOF (TVA, 2009b). While the BIP landfill was awaiting an NPDES permit, TVA was 

trucking coal ash leachate (approximate flow of 32,000 gallons per day) from that landfill, across the Tennessee 

River, and back into ash ponds at the JOF for disposal and discharge into the Tennessee River. (Tennessee Clean 

Water Network et al., 2011). Due to the high dilution ratio (831:1) between the wastewater treated in the ash pond 

and the BIP monofill’s leachate, TDEC decided that the additional flow and loading do not warrant a change in the 

ash pond’s effluent limits or monitoring requirements (TDEC, 2009). For additional information on the Trans-Ash 

Landfill, see the module Trans-Ash, Inc., Camden, Benton County, Tennessee, Module #PR28 under the Proven 

Damage Cases Technical Support Document.

445 According to Stantec (2009), the Dredged Pond East of Gas Turbine Area 5 (known also as Dupont Road 

Dredge Cell) was commissioned in the late 1980s – early 1990s. Ash was dry stacked in the area from the late 1990s 

through the early 2000s, when the area was closed. According to a TVA report cited in EIP (2010a), it has a “buffer 

of 3 feet of soil with a permeability of 1x10-6cm/sec.” TVA did not install a cap to prevent water from percolating 

through the ash, instead opting for an “evapotranspiration plan” that consisted of trees planted along the crest of the 

area. Although the liner appears to have worked, the evapotranspiration plan has not, and so the area has filled with 

water, creating a “bathtub effect” and seepage that “appears to have completely surrounded the cell.”

446 According to Stantec (2009), the South Railroad Loop Ash Disposal area 4 was commissioned in 1981 and 

originally included two dredge cells, a dry disposal area, and stilling ponds. Ash was dry-stacked over the dredge 

cells to a maximum height of 70-80 feet before the area was closed in 2000. The extent to which TVA lined the site 

prior to using it as an ash disposal area is unclear.

447 According to Stantec (2009), the North Abandoned Ash Disposal Area 1 was commissioned in the early 1950s, 

and closed in 1975-1976. DuPont, which operates a titanium dioxide facility north of JOF and east of Area 1, has 

used and controlled the northern part of Area 1 since the early 1970s. The area is presumably unlined, and although 

it was covered with soil upon closure, erosion “throughout the majority” of the exterior slopes of the area has since 

exposed the ash.

448 According to TVA (2009a), Ash Disposal Area 2, also now known as the Active Ash Pond, Active Ash Disposal 

Area (AADA), and the ash island, receives both bottom- and fly ash. Commissioned in 1970 and initially known as 

Ash Pond D (Geo-Hydro, 2011 and references therein), its surface area is 87 acres and storage capacity – 4,360,000 

cubic yards. This unit reported release of small quantity of cenospheres on March 27, 2004, when a discharge 

structure was disturbed during maintenance. According to NewsChannel 5 (2009), on the ash island there are 40-

foot dikes that hold back 30 feet of ash-laced water. Independent engineers stated in a June 2009 report, "There are 

significant concerns relative to the integrity of the structure." According to Bruce Tschantz who was part of a state 

advisory board that looked for lessons to be learned from the Kingston ash spill, "That plant is probably the most 

similar to the Kingston Plant." Tschantz criticized TVA's management for regulating ash ponds like landfills instead 

of labeling them as dams which have higher and more expensive safety standards. TVA Johnsonville has 32 

instruments on these dikes that are constantly monitored. TVA has spent more than $600,000 between the summer 

of 2009 and December 2009 making the pond more secure, including lowering the water level and adding a new 

spillway. According to Stantec (2009), approximately 260,000 tons of fly ash is wet-sluiced to the Active Ash 

Disposal (Areas 2 & 3) each year. Roughly all of this fly ash is being hauled to an offsite structural fill project 

(Trans-Ash/BIP). In addition, previously deposited fly ash is being dredged to an internal cell, dewatered and hauled 

to the Trans-Ash/BIP offsite structural fill site. Approximately 30,000 tons per year of bottom ash is wet-sluiced to 

the Active Ash Disposal. Dewatered bottom ash is reclaimed from the Active Ash Disposal and stacked within the 

pond footprint for later use in the offsite Trans-Ash/BIP structural fill project. According to TVA (2006), bottom ash 
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seepages have been observed around all four disposal facilities.449 Wastewater discharge is regulated 

under NPDES Permit No. TN0005444 (Dewberry Consultants, 2013, Appendix B, Document 14).450

According to Stantec (2009), JOF is located just south (upstream) of the confluence of the Tennessee 

River and Trace Creek. Much of the site is underlain by Pleistocene to Holocene age alluvium and terrace 

deposits varying in thickness from less than 20 feet along the tributary stream banks up to more than 100 

feet within the floodplain of the Tennessee River. These alluvial deposits consist of heterogeneous lenses 

and layers of clay, silt, sand, and gravel.451 The underlying bedrock consists of (in descending 

stratigraphic order) the Lower Mississippian-age Fort Payne Formation and the Devonian ageChattanooga Shale and Camden Formations.452 Bedrock strata beneath the plant area are essentially flat 

 

production ranges from 50,000 to 60,000 tons annually. Most bottom ash reclaimed within the Active Ash Disposal

pond was used to help prepare cells during the dewatering process. Ultimately, it is hauled off site with the 

reclaimed fly ash for use as fill material. Small amounts of bottom ash are also used by local counties for road 

deicing control during the winter. For additional information on CCR management at the JOF, see ibid; for JOF’s 

aerial vicinity map and an aerial view of the AADA, see ibid, Appendix A, Documents 1 and 2, respectively.

449 Stantec (2009). A seepage collection system has been recently installed along the southeastern side of Ash 

Disposal Area 2 for better monitoring. For additional risk-reduction engineering measures applied in Area 2, see 

Bickel and Sanchez (2011).

450 The most recent NPDES permit was valid between March 1, 2011, and November 29, 2013. In May 2013, TVA 

submitted an application for permit renewal by TDEC. According to TVA (2006), the JOF ash pond is permitted to 

receive combined wastewaters of ash transport water, treated chemical and nonchemical metal cleaning wastes, 

untreated nonchemical metal cleaning wastes, station sump discharges, groundwater flows, coal pile runoff, storm 

water runoff, and other flows. Effluent from the ash pond is discharged to the Tennessee River through Outfall 001 

at Tennessee River Mile 100.2 at a typical rate of 22.8 million gallons per day (MGD). In response to TDEC’s draft 

NPDES permit, requiring JOF to only ‘report’ on the monitored constituents, EIP (March 16, 2010 letter to TDEC) 

commented that the draft permit does not include a numeric effluent limits for metals contained in, or whole effluent 

toxicity caused by discharges of coal combustion waste pollutants to the Tennessee River, and TDEC must establish 

technology-based effluent limits (TBELs) in the Johnsonville Plant NPDES permit. TDEC responded that it has 

determined that development of TBELS is not required because EPA had considered, but determined not to set 

numeric metals limits in the 1982 ELGs. Note that these ELGs are outdated and have been superseded soon after by 

EPA’s Steam Electric Power Generating ELGs proposed Rule (EPA, 2013).

In response to TDEC’s position, on March 10, 2011, Tennessee Clean Water Network et al., (2011) 

“petitioned (the Tennessee Water Quality Control Board) for statutory appeal State of Tennessee National Pollutant 

Discharge Elimination System Permit Number TN0005444, which authorizes TVA’s JOF to discharge more than 21 

million gallons per day of toxic coal combustion wastewaters and nearly 1.2 billion gallons per day of very hot 

once-through cooling water to the Tennessee River. The Permit allows TVA to continue operating the 60-year-old 

JOF without making any investment in modern controls to prevent water pollution... Petitioners contend that TDEC 

must reverse the issuance of this Permit and reissue it inclusive of numeric, available technology economically 

achievable (BAT)-based technology-based effluent limits (TBELs) for all CCW pollutants to be discharged from the 

JOF plant; conduct an updated Section 316(a) analysis; impose either water quality-based effluent limits (WQBELs) 

or TBELs on the discharge of CCWs through seeps; and provide affirmative public notice of the issuance of the final 

Permit.”

451 According to Dewberry, ibid, the AADA is located on recent alluvium of the Tennessee River floodplain, which 

is largely inundated by Kentucky Lake. Based on geologic and subsurface information from Stantec’s 2010 report, 

the alluvium consists of fine-grained silt and silty clay that grade into sand and river gravel with increasing depth. 

Based on foundation drilling for the U.S. Highway-70 Bridge the alluvium was found to range up to 67 feet in depth 

and to average 60 feet in depth beneath the former floodplain surface. A groundwater monitoring well drilled at the 

AADA in 1986 encountered a 40-foot thick layer of sand and gravel, presumably in the lower part of the alluvial soil 

profile. The alluvium is indicated to be underlain by Devonian-age Chattanooga Shale.

452 The Fort Payne Formation varies from a sandy, cherty limestone in the upper portions of the unit to inter-bedded 

shale and cherty limestone lower in the stratigraphic column. Its thickness ranges up to 40 feet along the eastern 

boundary of the plant area, but the formation thins to the west, becoming completely absent over the western part of 

the site .The Chattanooga Shale is a 25 to 30 feet-thick fissile, carbonaceous shale thought to act as an aquitard, 

preventing the downward migration of groundwater into the underlying Camden formation, the principal aquifer in 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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lying, although complex small-scale structure is evident in the Camden Chert and the Chattanooga Shale. 

The presence of several northwest-striking, southwest-dipping, low-displacement thrust faults was 

identified at the site on the basis of drilling results and local bedrock exposures.453

The first occurrence of groundwater beneath the site is within the lower portion of the alluvial and 

residual overburden. Because these layers are not very thick and because they do not conduct 

groundwater well, the overburden deposits represent only a marginal aquifer. The Fort Payne Formation 

is not a usable aquifer in the plant vicinity because of its limited thickness. The Camden Chert represents 

the principal aquifer in the vicinity and is the source of water for numerous wells in the region. The 

Chattanooga Shale acts as a groundwater barrier between the Camden aquifer and the overlying 

overburden and, where present, the Fort Payne Formation.454

According to EIP (2010a), TVA has studied groundwater at JOF and reports that “Local groundwater 

movement at the plant site is generally from east to west toward the Tennessee River. Groundwater 

recharge occurs by local infiltration of precipitation at ground surface and laterally from upland areas east 

of the site. Groundwater passing beneath the site ultimately discharges to the Tennessee River.” TVA also 

stated that groundwater at the Dredged Ash Disposal Area455 “generally flows southwestward across the 

disposal site,” and groundwater at the South Rail Loop Ash Disposal Area456 “generally flows westward 

across the disposal site” toward the Tennessee River.” 

A different groundwater flow pattern is reported for Ash Disposal area 2.

457 The water levels that TVA 

maintains in the settling ponds within this disposal area provide the driving force to move leachate from 

the CCR within Ash Disposal Area 2 to Kentucky Lake. Leachate moves downward into groundwater 

and, as documented by monitoring wells, in a radial pattern away from the ash island into the lake. The 

assumption that the rates of discharge are so slow that the impact to Kentucky Lake is minimal, as 

established in a 1986 study458 are challenged on the following ground: (i) The Betson et al., (1986) 

calculations of very slow flow into the alluvial sediments beneath the disposed ash presume the existence 

of low-permeability, fine-grained sediments impeding significant flow into the high-permeability sands 

and gravels beneath. Since those fine-grained sediments were excavated away to create the ash pond, 

there is no impediment to flow and the CCR leachate can flow directly from Ash Disposal Area 2 into the 

high-permeability sediments. As a result, the discharge is orders of magnitude greater than computed by 

the cited 1986 study. (ii) The Betson et al., (1986) calculations assume low permeability that was assigned 

to the CCR material. The values that are used were based upon the very fine-grained character of fly ash 

and an assumption of comparable permeability to natural earth materials of similar grain size. That 

assumption is based upon a false analogy to ash compacted for construction purposes, rather than to the 

 

the region. The thickness of the Chattanooga Shale across the plant site ranges from 7 to 75 feet. Variations in 

thickness observed in boreholes are attributed to folding and repetition by faulting in the areas where thickness 

exceeds 30 feet, and to partial removal by erosion in areas exhibiting thicknesses less than 30 feet. The Camden 

formation, over 100 feet thick, consists of thin beds of cherty limestone inter-bedded with softer clay layers. 

According to Geo-Hydro (2011) and references therein, the uppermost bedrock beneath Ash Disposal Area 2 (the 

ash island) is the Camden Chert. This unit is highly fractured and readily conducts water: “The fractured condition 

of the chert allows ground water to circulate freely between the joints, bedding planes, and fractures, and does not 

provide a watertight foundation.”

453 TVA (2005).

454 TVA (2006).

455 Permit # IDL 43-0082: according to TVA Inspector General (2011), 20 parameters are monitored semi-annually.

456 According to TVA Inspector General (2011), under a Closure/Post Closure Plan, 17 parameters are monitored 

semi-annually.

457 Geo-Hydro (2011) and references therein.

458 Assessment of Leachate Containment, Ash Pond D, Report No. WR28-2-30-101 (Betson et al., 1986), cited in

Geo-Hydro (2011).
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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actual geotechnical properties of CCR as it exists within the disposed area. Geo-Hydro (2011) claims that 

these two errors compound, to create a three-orders of magnitude or more underestimation of contaminant 

migration to Kentucky Lake. 

Groundwater monitoring began at the JOF’s site in 1990; however, TVA did not monitor continuously so 

only data from select years are available at any of the given units. There are estimated to be over 1,000 

households within a 3 mile radius, some using groundwater as a drinking source. According to TVA 

(2005), a well survey conducted in 2000 identified nine water wells within approximately two miles of 

the plant. DuPont owns six of these wells, five of which are no longer in use. All off-site wells are 

situated up-gradient (east) of the plant. No public wells or spring water supplies were identified within 

two miles of the site. No offsite groundwater data is available.459 For issues associated with limitations of 

the JOF’s NPDES permit, see Southern Alliance for Clean Energy (2010).

Impact and Damage Claims: EIP (2010a) indicates that monitoring onsite found exceedances of the 

primary EPA Maximum Contaminant Levels (MCLs) and secondary EPA MCLs (SMCLs) for a variety 

of constituents at the four CCR disposal areas. EIP (2010a) notes that the active island area had primary 

EPA MCL exceedances for arsenic (up to 0.52 mg/L), cadmium (0.26 mg/L), and lead (0.12 mg/L); boron 

(16 mg/L) and molybdenum (0.040 mg/L) above their EPA Lifetime Health Advisory levels; and 

aluminum, iron, manganese, sulfate, and total dissolved solids (TDS) above their EPA SMCLs. 

EIP (2010a) also notes similar exceedances for primary and secondary MCLs at Area A, and similar EPA 

SMCL exceedances at the two other closed disposal areas.460 For instance, until recently, TVA maintained 

three wells around the South Railroad Loop Ash Disposal area 4: Wells B6, B8, and up-gradient well B9. 

Wells B6 and B8 consistently showed evidence of contamination, including high concentrations of boron, 

manganese, sulfate, and in the case of well B8, cobalt. Limited data from the 1992-1993 monitoring data 

suggest that the same pattern was evident 20 years ago. 

In 2012, on the grounds that contamination in wells B6 and B8 might have been naturally occurring (and 

before results from well B30 were collected), TVA and TDEC agreed to replace these wells with new 

wells screened in alluvial soils above the Chattanooga Shale. The new wells, B6R and B8R, were 

installed in December 2012 and first monitored in March 2013. The initial results for boron and 

manganese suggest that the groundwater in the alluvial soil, like the groundwater in the Chattanooga 

shale, has been contaminated by the ash in the South Railroad Loop area. 

EIP (2010a) also notes that groundwater under these disposal areas generally flows south west and 

ultimately discharges to the Tennessee River. It also notes that some of these chemicals were also 

measured at the water intake point in the Tennessee River at levels above EPA Water Quality Criteria 

(WQC) for Human Health, most noticeably manganese (0.079 mg/L);461 iron (0.395 mg/L),462 and 

aluminum (1.04 mg/L). 463

EIP has not received any recent data from the original ash pond area (North Abandoned Ash Disposal

Area 1), but data from 1990-1994 for six wells (C1 through C6) show that concentrations of all pollutants 

were very high, frequently more than an order of magnitude greater than the health-based thresholds.

 

459 TVA (2006).

460 Overall, groundwater monitoring wells show the following maxima: lead as high as 0.39 mg/L (26 times the 

MCL); chromium – as high as 0.62 mg/L (over 6 times the MCL of 0.1 mg/L); and boron - as high as 48 mg/L (8 

times the lifetime health advisory level).

461 EPA’s manganese WQC for Human Health is 0.05 mg/L.

462 EPA’s iron WQC for Human Health is 0.300 mg/L.

463 EPA’s aluminum WQC for Freshwater Aquatic Life is 0.087 mg/L (chronic) and 0.75 mg/L (acute).
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According to EIP (2010a), JOF is located near several municipal water intake pipes along the Tennessee 

River, including the New Johnsonville Municipal Water Intake at River Mile 100.6, and the City of 

Camden Water Intake at River Mile 100.3. The Ash Ponds and Disposal Areas at JOF discharge through 

Outfalls and seepage points between River Miles 99 and 101. The Tennessee River and Kentucky Lake 

are major recreational areas.464 The river in the JOF area hosts one species of endangered mussel.465

Evaluation against Proven Damage Criteria466

Resolution: EIP (2010a) contends that even though TVA still uses the ash island (Disposal Area 2) as 

the JOF’s “Active Ash Disposal Area,” the State allowed TVA to stop monitoring the island and an 

abandoned, unlined “Area A” where levels of CCR metals were the highest. Furthermore, despite 

evidence of surface water quality impacts from the Plant’s CCR disposal, the State has not required JOF 

to limit its discharge of CCR pollutants, monitor CCR disposal areas more frequently, or take any 

corrective action to reduce or prevent contamination.

 

464 According to Tennessee Clean Water Network et al., (2011), the Kentucky Lake has 2,064 miles of shoreline that 

includes the land between the Lakes National Recreation Area, the Tennessee National Wildlife Refuge, two state 

wildlife management areas, and four state parks as well as numerous marinas, boat docks, and launching ramps. 

Annual recreational use is reported at 17 million visits. Popular recreational uses of the Kentucky Reservoir include 

swimming, fishing, motor boating, water skiing, sailing, and windsurfing. The Kentucky Reservoir is home to many 

varieties of fish and also home to a number of federally listed threatened or endangered aquatic and avian species.

465 According to Appendix A of Attachment C, TVA (2010a): Report for Mussel and Habitat Survey of the 

Johnsonville Dike Stabilization Project, the TVA Natural Heritage Database indicates extant records of the federally 

endangered pink mucket (Lampsilis abrupta) and federal candidate slabside pearlymussel (Lexingtonia 

dolabelloides) within 10 miles of the JOF area. Historical records of the federally endangered orangefoot 

pimpleback (Plethobasus cooperianus), ring pink (Obovaria retusa), and rough pigtoe (Pleurobema plenum) also 

exist near the site, but are assumed to be extirpated or extremely unlikely to occur.

466 ICF (2010a).

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels (MCLs) 

or other health-based standards measured in 

groundwater at sufficient distance from the 

waste management unit to indicate that 

hazardous constituents have migrated to the 

extent that they could cause human health 

concerns

 Onsite groundwater data exceeded primary EPA MCLs 

for arsenic, cadmium, and lead.

 Onsite groundwater data exceeded the EPA Lifetime 

Health Advisory levels for boron and molybdenum. 

 Onsite groundwater data exceeded EPA SMCLs for 

aluminum, iron, manganese, sulfate, and TDS.

 No offsite groundwater data are available.

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage 

to human health or the environment (e.g., 

ecological damage)

 Surface water measurements in the Tennessee River 

indicate manganese, iron, and aluminum above the 

EPAs Water Quality Criteria. 

Criterion 3: Where there has been an 

administrative ruling or court decision with an 

explicit finding of specific damage to human 

health or the environment

 None
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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In May 2011, TVA JOF developed a Preliminary Closure Plan for the Active Ash Pond (Areas 2 & 3).

467

A citizens group has submitted that there are three primary areas of concern that TVA must address to 

improve the plan: (i) considering that the impoundment’s dikes comprise coal ash,468 to protect against 

catastrophic dike failure and minimize the likelihood of further discharge and groundwater contamination, 

TDEC should require full removal of ash from the impoundment. (ii) In lieu of fully safeguarding against 

failure and contamination, TDEC should require TVA to install a composite cap (rather than a clay cap, 

as proposed) to prevent water infiltration. Finally, (iii) TVA must plan for an indefinite post-closure care 

and monitoring period.469 In the same vein, Geo-Hydro (2011), based on hydrogeological arguments and 

the engineering design of the Disposal Area 2 (aka Active Ash Pond), considers the preliminary closure 

plan for this disposal area as inadequate to prevent CCR leachate from infiltrating from the prospectively 

clay-capped waste unit into Kentucky Lake, and challenges the proposed brief (18-months) post-closure

monitoring period.

USWAG claims that this Site does not meet the criteria for a damage case.470

ICF (2010a) Rationale: Potential Damage. <Groundwater exceedances of the primary EPA MCL for 

arsenic, cadmium, and lead; the SMCL for aluminum, iron, manganese, sulfate, and TDS; and the EPA 

Lifetime Health Advisory levels for boron and molybdenum have been found onsite. While WQC 

exceedances were found in offsite surface water, there is no scientific study available that explicitly 

documents evidence of damage to human health or the environment. There are no administrative rulings 

or court decisions associated with the site.>

References

EIP (2010a): In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their 

Environment, Thirty-nine New Damage Cases of Contamination from Improperly Disposed Coal 

Combustion Waste, Case #34, Environmental Integrity Project, Earthjustice and Sierra Club, August 26, 

2010. 

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

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

Appendix C, Case #34. ICF, 10/2010.

TVA (No date, presumably 2009): TVA’s Conversion of Wet Ash and Gypsum to Dry Storage. TVA. 

Accessed Online August 2014.

 

467 TVA plans to close this area between 2015 and 2017 by removing most of the ash, grading the dikes and 

remaining ash, and installing either a geosynthetic or compacted soil cap. The closure plan calls for removing 5 

million cubic yards of ash. TVA estimated that this would be all of the ash on the island and all of the ash that will 

be sluiced to the island between 2009 and plant closure. However, the closure plan also describes grading and 

capping of the remaining ash, suggesting that not all ash will be removed. 

468 This conclusion is at odds with Stantec’s (2009) reporting (in: TVA Disposal Facility Assessment Phase 1 Coal 

Combustion Product Disposal Facility Summary Johnsonville Fossil Plant (JOF) Active Ash Disposal Areas 2 & 3, 

pages 1 -2) that the dikes were originally constructed – and then twice elevated – using clay material.

469 Southern Alliance for Clean Energy (2011).

470 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0211. “This case does not meet the criteria for 

a damage case. The information provided for the site does not contain any documented evidence of off‐site 

groundwater monitoring data or off‐site groundwater monitoring data showing exceedances of specified health‐

based criteria. Further, the allegations of surface water exceedances of Federal Water Quality Criteria as a result of 

alleged groundwater impacts from CCRs at the site are not supported with reference to any off‐site groundwater 

monitoring data or surface water quality studies. Surface water quality data presented in the Reference Document 

provides no information as to date of the sample(s), sample location relative to the site, or sample location relative to 

the direction of groundwater flow.”
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

118

http://www.tva.gov/news/Kingston/dry_ash.pdf

TVA (2009a): TVA Response to a Request for Information under CERCLA Section 104(e) for Ash 

Management Units, Johnsonville Fossil Plant, March 25, 2009. Accessed Online May 2012.

http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys/tva-fossil.pdf

Stantec (2009): TVA Disposal Facility Assessment, Johnsonville Fossil Plant. Accessed Online May 

2012.

http://www.tennessee.gov/environment/kingston/pdf/tva/StantecJohnsonvilleAnalysisG.pdf

http://www.tva.gov/power/stantec/tn/rpt_001_tn_report_171468118.pdf (Report)

http://www.tva.gov/power/stantec/tn/rpt_002_all_11x17_aerials_171468118_tn.pdf (Aerial Image)

TVA (2009b): Johnsonville Fossil Plant Ash Disposal Site Expansion, Benton, Houston, and Humphreys 

Counties, Tennessee (including links to the Draft Supplemental Environmental Assessment and to the 

Final Supplemental Environmental Assessment. JOF Ash Disposal Phase 2, Project Number: 2007-75). 

Accessed Online May 2012.

http://www.tva.gov/environment/reports/johnsonville_ash/index.htm

Final Supplemental Environmental Assessment: 

http://www.tva.gov/environment/reports/johnsonville_ash/jof_ash_phase2_fsea-no_appendices.pdf

NewsChannel 5 (2009): TVA Focuses On Johnsonville Ash Pond, December 21, 2009. Accessed Online 

August 2013.

http://www.newschannel5.com/story/11712450/tva-focuses-on-johnsonville-ash-pond

Southern Alliance for Clean Energy (2011): Public Comment Regarding TVA Johnsonville Active Ash 

Pond Preliminary Closure Plan, NPDES Permit No. TN0005444, submitted to Commissioner Robert J. 

Martineau, Jr., Tennessee Department of Environment and Conservation, by Southern Alliance for Clean 

Energy, Earthjustice, Tennessee Clean Water Network, and Environmental Integrity Project, December 

21, 2011. Accessed Online May 2012.

http://earthjustice.org/sites/default/files/Johnsonville_coal_ash_comments.pdf

TVA Inspector General (2011): Final Report – Inspection 2009-12991 – TVA's Groundwater Monitoring 

at Coal Combustion Products Disposal Areas, TVA Office of the Inspector General Inspection Report, 

June 21, 2011. Accessed Online November 2012. 

http://oig.tva.gov/reports/PDF/11rpts/2009-12991.pdf

Bickel and Sanchez (2011): Risk Reduction of Ash Disposal Area No. 2, a Case Study. TVA Johnsonville 

Fossil Plant, New Johnsonville, Humphreys County, Tennessee, Stephen H. Bickel and Roberto L. 

Sanchez, In 2011 World of Coal Ash (WOCA) Conference, May 9-12, 2011, Denver, Colorado. Accessed 

Online December 2012.

http://www.flyash.info/2011/111-Bickel-Stantec-2011.pdf

Geo-Hydro (2011): Report on Tennessee Valley Authority’s Johnsonville Ash Island Placement Area and 

Closure Plan, Johnsonville Fossil Plant, New Johnsonville, TN. Prepared by Geo-Hydro, Inc., 1928 E 

14th Avenue, Denver, CO 80206, for Alliance for Clean Energy, PO Box 1842, Knoxville, TN 37901, 

December 12, 2011. Accessed Online December 2012.

http://earthjustice.org/sites/default/files/Geo-HydroReport.pdf

Tennessee Clean Water Network et al., (2011): Petition for Statutory Appeal before the Tennessee Water 

Quality Control Board in the Matter of: Tennessee Department of Environment and Conservation 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

119

Division of Water Pollution Control, NPDES Permit Number TN0005410. Tennessee Clean Water 

Network and Southern Alliance for Clean Energy, March 10, 2011. Accessed Online December 2012.

http://tcwn.org/sites/default/files/JOF%20Permit%20Appeal%20Petition.pdf

Southern Alliance for Clean Energy (2010): The State of Coal Ash Regulation in Tennessee, the Southern 

Alliance for Clean Energy, Knoxville, Tennessee, October 26, 2010. Accessed Online December 2012.

http://www.southeastcoalash.org/wp-content/uploads/2012/07/TN-Regulatory-and-Damage-Report.pdf

TVA (2005): NOxOUT Selective Noncatalytic Reduction Demonstration, Johnsonville Fossil Plant - Unit 

1, Humphreys County, Tennessee, Final Environmental Assessment, Project Number 2005-45, 

Tennessee Valley Authority, April 2005. Accessed Online February 2013.

http://www.tva.gov/environment/reports/johnsonville/final_jof_sncr_ea.pdf

TVA (2006): Selective Noncatalytic Reduction Project, Johnsonville Fossil Plant - Units 1-4, Humphreys 

County, Tennessee, Final Environmental Assessment, Project Number 2006-48, May 2006. Accessed 

Online February 2013.

http://www.tva.gov/environment/reports/johnsonville2/ea.pdf

TDEC (2009): TVA Updated Application to add landfill leachate from Trans-Ash Benton Co. site to ash 

pond Outfall 001, Volumes 1 and 2. TDEC, Division of Water Pollution Control, December 17, 2009.

Accessed Online August 2014.

http://environmentonline.state.tn.us:8080/pls/enf_reports/f?p=9034:34051:14607943728797::NO:34051:P34051_PERMIT_

NUMBER:TN0005444

TVA (2010): Johnsonville Fossil Plant Dike Stabilization, Humphreys County, Tennessee, Environmental 

Assessment, Project Number 2009-59, Tennessee Valley Authority in Cooperation with United States 

Army Corps of Engineers, February 2010. Accessed Online February 2013.

http://www.tva.gov/environment/reports/johnsonville_dike_stabilization/fea.pdf

Access to appendices: http://www.tva.gov/environment/reports/johnsonville_dike_stabilization/index.htm

TVA (2010a), Attachment C: TVA Biological Assessment with Mussel and Habitat Surveys, Tennessee 

Valley Authority Office of Environment and Technology, Biological and Historic Resources, in 

Cooperation with the U.S. Army Corps of Engineers, Nashville District, January 7, 2010. Accessed 

Online February 2013.

http://www.tva.gov/environment/reports/johnsonville_dike_stabilization/attachemnt_c.pdf

TDEC (2011): NPDES Permit No. TN0005444, TVA - Johnsonville Fossil Plant, New Johnsonville, 

Humphreys County, Tennessee. State of Tennessee Department of Environment and Conservation, 

Division of Water Pollution Control, February 9, 2011. Accessed Online August 2014.

http://environmentonline.state.tn.us:8080/pls/enf_reports/f?p=9034:34051:14607943728797::NO:34051:P34051_PERMIT_

NUMBER:TN0005444

EPA (2013): Steam Electric Power Generating Effluent Guidelines, Proposed Rule, April 2013. Accessed 

Online August 2014.

http://water.epa.gov/scitech/wastetech/guide/steam-electric/index.cfm

Dewberry Consultants (2013): Coal Combustion Residue Impoundment Round 11 - Dam Assessment 

Report, Johnsonville Fossil Plant, Tennessee Valley Authority, New Johnsonville, Tennessee.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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Prepared by Dewberry Consultants LLC, April 2013, Fairfax, Virginia, April 2013. Accessed Online July 

2014.

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

PTb54. Fayette Power Project (Sam Seymour),471 Lower Colorado River Authority 

(LCRA), La Grange, Fayette County, TX

Type: Surface Impoundments and Landfills.

Background and Description: The Fayette Power Project (FPP) is located seven miles east of the City 

of La Grange. FPP has four waste management units onsite which are either currently active or in the 

process of closing.472 The Coal Ash Disposal Pond (CADP),473 with a storage capacity of 3.7 million 

cubic yards,474 used to receive, since it began operation in 1979 until late in 2010, sluiced fly ash and 

bottom ash from generating Units 1 and 2. CADP has a clay liner.475 Half of the pond was closed down in 

1988,476 and the Lower Colorado River Authority (LCRA) has submitted plans to have it completely 

 

471 Co-owned by the Lower Colorado River Authority (LCRA) and the City of Austin, and operated by LCRA.

472 FPP consists of three coal-fired generating units capable of producing up to 1,641 MW of electricity. Unit 1 was 

built in 1979, Unit 2 in 1980, and Unit 3 in 1988. According to Frazer et al., (2010), Unit 3, a nominal 470 MW fired 

unit, was designed to burn open-pit mined, high-sulfur Texas lignite from the LCRA’s Cummins Creek Lignite 

project in north Fayette County and later used lignite from LCRA’s Powell Bend Mine in Bastrop County. For the 

stratigraphy and geology of the Late Tertiary-age Wilcox Group lignite, see U.S. Geological Survey Open-File 

Report 95-595 (1995) and http://pubs.usgs.gov/of/1997/of97-172/descrip.htm; for the lignite’s properties, see 

Edwards (1987), and for cost considerations of its utilization in the late 1980s, see Niquette (1987). Since the early 

1990s (?), Unit 3 has been firing low-sulfur, rail-delivered Powder River Basin (PRB) sub-bituminous coal. PRB 

coal fuels also fuel the Plant’s Units 1 and 2: http://www.lcra.org/energy/power/facilities/fayette.html and 

http://news.google.com/newspapers?nid=861&dat=19891108&id=CjlSAAAAIBAJ&sjid=OjYNAAAAIBAJ&pg=5

488,1779033

473 Also, referred to as coal ash pond or ash pond.

474 According to CDM (2011), in 1985, a dry fly ash handling system was installed for generating Units 1 and 2, and 

fly ash that was not sold for beneficial reuse was sluiced to the CADP until the Combustion Byproduct Landfill 

(CBL) was completed in 1988. Any unsold fly ash was disposed of in the CBL. Bottom ash is removed from 

CADP’s settling basins daily, using a front end loader, and stored inside the active impoundment to dewater until it 

is sold.

475 According to CDM (2011), the embankments of the CADP were constructed over surface deposits of sandy clay 

underlain by clayey sand and fine sand. The clayey soils range in thickness from 5 to greater than 20 feet and have 

low permeability values (between 4.0 x 10-9cm/sec and 5.92 x 10-7 cm/sec). This in-situ soil was slated for 

constructing pond liners: according to CDM’s (2010) Impoundment Inspection Forms, the CADP has a 2-feet thick 

clay liner with a permeability of 3.8 x 10-8cm/sec.

476 According to CDM (2011), following the Texas Water Commission's November 1, 1988 approval of the partial 

closure of the southern portion of the CADP, the southern 39.65 acres were closed in accordance with the Texas 

Commission on Environmental Quality (TCEQ) Technical Guideline (TG) No. 3. The closure plan consisted of a 

minimum 3-feet-thick compact clay cap with a 1-foot-thick layer of topsoil.
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closed.477 The site also has a Reclaim Pond,478 a Coal Pile Run-Off Pond,479 a coal ash landfill, and a 

Class 2 sanitary landfill. The Reclaim Pond includes CCR materials (FGD byproduct, sludge from the 

reaction tank, and fly ash particulate entrained in water from the CADP) along with other miscellaneous 

lower volume wastewater. The facility’s discharges are NPDES permitted.480 The Class 2 landfill opened 

in 1979 and accepted non-CCR wastes such as construction materials, blast media, insulation-, cleaningand painting waste, fluorescent lamps and more. The CCR landfill is used for dry handling of CCR 

materials, primarily FGD gypsum.481

The FPP and the impoundments are located next to Cedar Creek Dam and Lake Fayette, a 2,400-acre 

reservoir from which FPP gets its cooling water. Cedar Creek Dam and Lake Fayette are man-made 

structures created as part of the FPP development. Lake Fayette is a popular recreational lake for fishing 

and boating in central Texas.482 In addition to the recreational and camping areas, there are reportedly 42 

private drinking wells within two miles of the site. Groundwater from the site generally discharges into 

Cedar Creek or Baylor Creek nearby; however, no offsite groundwater monitoring data is available. 

According to CDM (2011), the FPP is located at the edge of the Gulf of Mexico coastal plain, near the 

contact with the coastal uplands. In the vicinity of the site the surficial geology consists of Miocene-age 

deposits of the Oakville Formation of the Flemming Group. Typically, the sediments are inter-bedded 

sands, silts, and clays with intermixed volcano-clastic and tuffaceous material. In the vicinity of the site, 

clays are inter-layered with clayey sand, fine sand, and sandstone.

According to LCRA’s Phase I Investigation Reports submitted to TCEQ as cited in EIP (2010a), “FPP is 

situated on a ridge between Cedar Creek located to the east, Baylor Creek to the west, and Cedar Creek 

Reservoir to the north. The site is underlain by three shallow groundwater bearing units (GWBUs) of the 

Oakville Formation.483 The shallowest GWBU is the Upper Sand, which is found only in the north and 

 

477 According to CDM (2011), in 2010, LCRA was in the process of installing a dry collection and disposal system 

for bottom ash, economizer ash, and air pre-heater ash for Units 1 and 2 at FPP. According to the plan, no water or 

CCR were to be disposed of in the CADP after October 2010, and the CADP would be slated for closure. The 

compacted clay-cap for the closure of the active portion of the impoundment was to be a minimum of 3 feet thick, 

with a maximum permeability of 1 x 10-7cm/sec. An 18-inch thick, non-compacted layer of topsoil was to be placed 

on the compacted clay cap as recommended by TCEQ TG No. 3. The topsoil layer will be seeded with selfsustaining indigenous shallow root grass.

478 CCR waste sluiced into the (30-acre, 968,645 cubic yard storage capacity) Reclaim Pond includes fly ash that is 

suspended in water pumped from the CADP and flue gas emission control residuals. According to CDM’s (2010) 

Impoundment Inspection Forms, the Reclaim Pond has a 2-feet thick liner with unknown permeability. According to 

the Lower Colorado River Authority (2009a), the Reclaim Pond is regulated under the same Texas Pollutant 

Discharge Elimination System (TPDES) Permit and is registered under the same TCEQ Solid Waste Registration 

Number as is CADP. 

479 The Coal Pile Run-off Pond receives surface water runoff from the coal piles and is located adjacent to the south 

embankment toe of the CADP. There is no CCR stored in the Coal Pile Run-off Pond.

480 Texas Pollutant Discharge Elimination System (TPDES) Permit No. WQ00020105 (TX0073121) issued by the 

TCEQ on April 25, 2005. In addition, the coal ash pond is registered under TCEQ Solid Waste Registration No. 

31575 as a management unit (Management Unit 002) in accordance with TCEQ's nonhazardous industrial solid 

waste rules. 30 T.A.C. §335.6.

481 According to CDM (2011), LCRA is in the process of installing a dry collection and disposal system for bottom 

ash, economizer ash, and air pre-heater ash for Units 1 and 2 at FPP. The Unit 2 dry collection system was installed 

in the spring of 2010, and the Unit 1 dry collection system was scheduled to be installed by the fall of 2010. No 

water or CCR will be disposed of in the CADP after October 2010. At that time and subject to TCEQ approval, 

LCRA plans to close the CADP at FPP in accordance with TCEQ regulations.

482 Fayette County Reservoir: http://www.tpwd.state.tx.us/fishboat/fish/recreational/lakes/fayette/.

483 Water quality baseline information can be inferred from Fayette County (undated): Six wells sampled from the 

Oakville Formation had an average TDS concentration of 800 mg/L although 14 percent of all samples had TDS 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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west portions of the site where surface elevations are highest. The second and thirds GWBUs are the 

Middle Sand and Lower Sand, respectively. Both of these units are laterally continuous throughout the 

site and dip to the southeast. The GWBUS are each separated from one another by thick, laterallycontinuous clay or clayey strata which appear to possess good confining characteristics. Groundwater 

recharge to the transmissive units is from direct surface water infiltration in outcrop areas and/or from the 

Cedar Creek Reservoir adjacent to the north. Groundwater flow generally follows topography, resulting in 

variable flow to the southeast and southwest. Groundwater discharges into Cedar Creek, Baylor Creek 

and its tributaries, as well as flowing into the geologic units that regionally dip to the southeast.”

Impact and Damage Claims: EIP (2010a) indicates that groundwater monitoring in 2009 found 

multiple instances of onsite contamination at levels above the Texas Protective Contamination Levels 

(PCLs) and primary EPA Maximum Contaminant Levels (MCLs). Cobalt above both the residential and 

commercial PCL (0.0303 mg/L, or more than 4 times the residential PCL) was found down-gradient of 

the CCR landfill, and molybdenum above the residential PCL (0.154 mg/L, nearly four times the federal 

Lifetime Health Advisory Level of 0.04 mg/L) was found down-gradient of the CADP. Selenium was 

also found above the primary EPA MCL (and PCLs) near the CADP (0.212 mg/L). In 2005, TCEQ 

required a selenium assessment at the CADP as the likely source of selenium; after having ruled out the 

coal pile as a source, investigations remain underway. Monitoring also found aluminum, chloride, 

manganese, sulfate, and total dissolved solids (TDS) above secondary EPA MCLs (SMCLs) at various 

monitoring wells located down-gradient from all the waste management units at the site. 

Evaluation against Proven Damage Criteria484

Other Considerations

 In addition to CCRs, the Reclaim Pond also receives wastewater treatment sludge and waste 

metal cleaning solution.

 Arsenic was also detected on the site above the primary EPA MCL downgradient from the Class 

2 landfill in an aquifer not impacted by the CCR disposal sites. The source of arsenic is not 

 

concentrations in excess of this average. Chloride concentrations averaged 118 mg/L with 14 percent of the samples 

having concentrations greater than the average. Sulfate concentrations averaged 49 mg/L for all samples although 29 

percent of the samples had sulfate concentrations greater than the average.

484 ICF (2010a).

Criteria Evaluation

Criterion 1: Documented exceedances of primary 

maximum contaminant levels (MCLs) or other 

health-based standards measured in groundwater 

at sufficient distance from the waste management 

unit to indicate that hazardous constituents have 

migrated to the extent that they could cause human 

health concerns

 Onsite groundwater data exceeded primary EPA 

MCLs for selenium.

 Onsite groundwater data exceeded the Texas PCL 

for cobalt and molybdenum. 

 Onsite groundwater data exceeded EPA SMCLs for

aluminum, chloride, manganese, sulfate, and TDS.

 No offsite groundwater data are available.

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage to 

human health or the environment (e.g., ecological 

damage)

 None

Criterion 3: Where there has been an 

administrative ruling or court decision with an 

explicit finding of specific damage to human health 

or the environment

 None
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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confirmed as the Class 2 landfill, though the CCR disposal units are not likely the cause. Distance 

and relative low waste volume compared to the Reclaim Pond and CADP suggest the Class 2 

landfill is not the source of selenium and selected other contaminants in wells near the CCR units. 

 TCEQ PCLs are not specifically health-based criteria for groundwater. 

Resolution: In 2005, TCEQ required a selenium assessment at the CADP as the likely source of 

selenium, though investigations remain underway. In 2010, TCEQ conceded485 that molybdenum and 

selenium have been detected in groundwater at the site. TCEQ has since been evaluating the levels of 

these metals to determine whether they are within the naturally occurring background concentrations. 

LCRA has submitted to TCEQ a groundwater monitoring report in September 2010. Following a review 

of this report, TCEQ responded to LCRA in a letter (January 27, 2011) providing recommendations 

and/or comments regarding LCRA’s supplemental activities towards affected property assessments. 

According to TCEQ,486 based on groundwater detection and assessment monitoring, LCRA has 

determined that molybdenum (at 0.131 mg/L, which is above the TCEQ Tier I Residential Groundwater 

Ingestion Protective Concentration Level of 0.120mg/L) and possibly cobalt, manganese, and vanadium 

in groundwater appear to be released from an ash-pond on site. As a result, on September 20, 2009, 

TCEQ sent a notification of groundwater contamination to two off-site landowners in the vicinity of the 

facility.487 TCEQ has received a work plan (August 18, 2009) to close the ash pond (which is permitted 

under the TPDES). Authorization to proceed with the work plan for closure of the unit under state rules 

(30 TAC §335.8 and 30 TAC §350) was granted on July 9, 2010. LCRA is proceeding with the capping 

and closure of the ash pond.

USWAG claims that this Site does not meet the criteria for a damage case.488

ICF (2010a) Rationale: Potential Damage. <Groundwater exceedances of the primary EPA MCL for 

selenium, and the SMCL for aluminum, chloride, manganese, sulfate, and TDS have been found onsite. 

There are no administrative rulings or court decisions associated with the site.>

References

EIP (2010a): In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their 

Environment, Thirty-nine New Damage Cases of Contamination from Improperly Disposed Coal 

Combustion Waste, Case #35, Environmental Integrity Project, EarthJustice and Sierra Club, August 26, 

2010. 

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

 

485 Texas Commission of Environmental Quality comment to the docket, Page 10: 

http://www.uswag.org/pdf/2010/CCR%20Comments/TXCEQ112010.pdf

486 Tanveen Anjur, TCEQ, 10/31/2011 email to Willie Kelly, EPA Region 6; forwarded to A. Livnat on October 31, 

2011.

487 Tanveen Anjur, TCEQ, October 31, 2011 email, ibid. 

488 Comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211): “In 2005 the Texas Commission on

Environmental Quality (TCEQ) required LCRA to provide an assessment of selenium in groundwater to identify 

potential sources on the Site. TCEQ also sent letters to two neighboring property owners to notify them of potential 

impacts to their drinking wells from molybdenum. TCEQ has not required additional assessment actions or off‐site 

monitoring. LCRA has presented a closure plan to TCEQ for the Coal Ash Pond. This case does not meet the 

criteria for a damage case because the allegations are only for on‐site groundwater. The information provided for the 

site does not contain any documented evidence of off‐site groundwater monitoring data or off‐site groundwater 

monitoring data showing exceedances of specified health‐based criteria. Allegations focus on potential impacts to 

nearby drinking water wells, and specific investigation actions since 2005 have led to no regulatory actions for the 

site.”
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

124

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

Appendix C, Case #35. ICF, 10/2010.

Fayette Power Project Technical Specifications for Ash Pond Closure Units 1 and 2, September 2010, 

URS for Lower Colorado River Authority. Accessed Online May 2012.

http://www.lcra.org/library/media/public/docs/rfps/2010/5.7629RFP.Technical.Specifications09-23-

10.pdf (No longer accessible).

Lower Colorado River Authority (2009): Response to EPA Request for Information, Coal Ash 

Impoundment Survey Results for Coal Ash Pond, March 27, 2009. Accessed Online May 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/lower-co-river.pdf

Lower Colorado River Authority (2009a): Response to EPA Request for Information, Coal Ash 

Impoundment Survey Results for Reclaim Pond, March 19, 2010. Accessed Online May 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/lower-co-river2.pdf

TRRP Protective Concentration Levels, Texas Commission on Environmental Quality. Accessed Online 

Oct 2010. http://www.tceq.state.tx.us/remediation/trrp/trrppcls.html

CDM (2011): Assessment of Dam Safety of Coal Combustion Surface Impoundments Sam Seymour -

Fayette Power Project Station, Lower Colorado River Authority, Final Report, April 18, 2011. Accessed 

Online November 2012.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/lower_colorado_river_afp_final.pdf

Frazer et al., (2010): Fayette Power Project Unit 3 FGD Upgrade: Design and Performance for More 

Cost- Effective SO2 Reduction, C. Frazer, A. Jayaprakash, S. M. Katzberger, Y. J. Lee, and B. R. Tielsch. 

Technical Paper BR-1845, Babcock & Wilcox Power Generation Group, Inc., Presented to: EPRI Power 

Plant Air Pollutant Control Mega Symposium, August 30 - Sept. 2, 2010, Baltimore, Maryland. Accessed 

Online May 2012.

http://www.babcock.com/library/pdf/BR-1845.pdf

Fayette County (undated): Fayette County Groundwater Conservation District: General Geology and 

Hydrology. Accessed Online November 2012.

http://www.fayettecountygroundwater.com/geology_and_hydrology.htm

Edwards (1987): Producing Electric Power from Low Grade Lignite: Experience Gained in the Design, 

Construction and Operation of Central Station Power Plants Utility Lignite from the Jackson Formation in 

Texas, T.G. Edwards, Tippet & Gee, Inc., Abilene, Texas, U.S. Department of Energy Conference 

Proceedings, pages and 7 B3-2 to 7 B3-15, 1987. Accessed Online January 2013.

http://www.fischer-tropsch.org/DOE/_conf_proc/Coal%20Conferences/87_6081/doe_metc-87_6081-

F.pdf

Niquette (1987): A Comparison of Coal and Lignite Fuel Costs for Existing and New Generation Stations 

in Texas, Thomas Niquette, Northwestern Resources Co., Runtsville, Texas, U.S. Department of Energy 

Conference Proceedings, pages and 1 C1-1 to 1 C1-15, 1987. Accessed Online January 2013.

http://www.fischer-tropsch.org/DOE/_conf_proc/Coal%20Conferences/87_6081/doe_metc-87_6081-

F.pdf

U.S. Geological Survey Open-File Report 95-595 (1995): Coal Geology of the Paleocene-Eocene Calvert 

Bluff Formation (Wilcox Group) and the Eocene Manning Formation (Jackson Group) in east-central 

Texas, in Field Trip Guidebook for The Society for Organic Petrology, Twelfth Annual Meeting, The 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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Woodlands, Texas, Edited by P.D. Warwick and S.S. Crowley, U.S. Department of Interior, U.S. 

Geological Survey Open-File Report 95-595, August 30, 1995. Accessed Online January 2013.

http://pubs.usgs.gov/of/1995/of95-595/

PTb55. Oak Creek Power Plant, Wisconsin Energy (WE) – Wisconsin Electric Power 

Company (WEPCO), Oak Creek, Milwaukee and Racine Counties, WI

Type: Landfills and Multiple ‘Structural Fill’ Sites.

Background and Description: The Oak Creek Power plant has been in operation since the 1950s.489 Its 

onsite waste units consist of the active Caledonia Landfill (since 1989) as well as two inactive, unlined 

landfills, Oak Creek North (OCN) and Oak Creek South (OCS). OCN began operating in 1969 and closed 

in 1976. OCS opened in 1976 and was capped and closed with a gravity leachate collection drain in 

1992.490 The active Caledonia Landfill is approximately 45 acres with a clay liner and leachate collection 

system.491 Caledonia receives coal combustion residual (CCR) and wastewater treatment solids from five 

power plants operated by Wisconsin Energy.492 Between the 1950s and 1960s, before permits were 

required for ash disposal, other ash disposal activities took place throughout the plant property between 

the Caledonia and Oak Creek South landfills and Lake Michigan.493 These include the Early Ash Disposal 

Area (EADA), an old, unprotected ‘structural fill’ that accepted coal ash between 1953-late 1960s.494

The EADAs, OCN and OCS do not have liners or leachate collection systems consistent with today’s 

industrial waste landfill standards. The lack of liners in these older landfills may be mitigated by the 

 

489 The South Oak Creek power plant, a base load facility, occupies over 400 acres (1.6 km2

) of land on the border of 

Milwaukee and Racine counties on Lake Michigan in Oak Creek, Wisconsin. The Plant comprises four generation 

units with 1,055 MW generating capacity. For commissioning years of the four older generation units, see:

http://www.we-energies.com/home/OakCreek.pdf. Bechtel Corporation completed the construction of the WE coalfired power plant expansion project, which broke ground in 2005 and involved the construction of two 615MW 

coal-fired generating units. Unit 1 was turned over on February 2, 2010; Unit 2 was turned over on January 12, 

2011: http://www.pennenergy.com/index/articles/display.articles.pennenergy.power.coal.2011.january.wepcoto_pay__16mm.QP129867.dcmp=rss.page=1.html. The net-generation capacity of the new Oak Creek expansion’s 

(Elm Road) two units is 1,056 MW: http://generationhub.com/2012/03/27/wepco-adding-sub-bituminous-coal-atnew-oak-creek. For aspects of the water-energy nexus associated with Lake Michigan cooling water withdrawn for 

the Elm Road expansions, see Haven and Pebbles (2010). As of 2012, Sub-bituminous PRB coal is rail transported 

from Wyoming mines for the South Oak Creek facility, and coal for the Oak Creek expansion units is railtransported from Pennsylvania and West Virginia.

490 The OCN Landfill is approximately 45 acres in area and the OCS Landfill is approximately 130 acres in area. 

According to WI DNR’s comment to the docket: EPA-HQ-RCRA-2009-0640-6416, the landfill(s?) operated under 

license No. 3232.

491 Caledonia (FID#252108450; license #3232) has an approved capacity of 4,050,000 cubic yards. As of May, 

2010, approximately 1.75 million cubic yards have been placed in the landfill. Phase I design and construction 

specified a 5-foot-thick compacted clay liner (for completed cells 1, 2, 3, 4, 6 and 8). Phase II was approved in 2010 

for a composite: a 4 feet-thick compacted clay liner and a 60-mil HDPE liner. Phase II also includes a leachate 

collection system.

492 Oak Creek, Elm Road, Pleasant Prairie, Valley, and Milwaukee Power.

493 Wisconsin introduced regulations for the beneficial use of industrial byproducts in 1998 (Chapter NR538). For a 

brief summary, see EPA-HQ-RCRA-2012-0028-0092, pages 16-17.

494 The EADAs are estimated to comprise about 61 acres. Soil borings on the property show that the coal ash 

thicknesses in the EADAs range from 6 to about 20 feet (Lourigan and Phelps, 2013). The EADA was the site from 

which in October 31, 2011, CCR mudflow into Lake Michigan was caused by the collapse of a CCR structural fill.

This incident is rated as a proven damage case and is described under a separate write up in the Damage Case 

Compendium, Technical Support Document on Damage Cases Module # PR39.
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thick silty clay soil upon which they are constructed. They are capped with clay soil covers. The OCN 

Landfill also has an asphalt parking lot covering it, while the OCS Landfill has several feet of clay cover 

soil that was excavated from elsewhere on the property and laid in place in 2005 and 2006 during 

excavation for the new power plant.495

There are a number of residences near the Caledonia and the Oak Creek South Landfills, and while most 

receive public water from Lake Michigan, there are private drinking water wells in the area, some within 

1,500 feet of the landfills.

Similarly to other CCR landfill areas in the outskirts of Milwaukee, the Oak Creek Plant is located in an 

area of hummocky end moraine and glacial outwash deposits from the last of the glacial advances of the 

Lake Michigan Lobe, some 13,000 to 14,000 years before present.496 Fractures dissect the upper portion 

of this section to a depth of approximately 30 feet. The underlying unconsolidated glacial sediments 

generally consist of poorly to moderately well sorted sand and gravel deposited on and beneath glacial ice 

by meltwater streams near the ice margin. These deposits and underlying tills are assigned to the Oak 

Creek Formation. The age assigned to the Oak Creek Formation is 15,000 to 17,000 years B.P.497

Underlying these Quaternary glacial deposits is a relatively thick deposit of Silurian dolostone of the 

Niagaran Series. This massive dolomitic limestone has a highly irregular erosional surface and contains 

numerous fractures and solution features.498

According to EIP (2010a), three major hydrogeologic units are present in the CCR Landfill area: 

(i) Massive, 150 to 175-feet thick, clay-rich glacial till of the Oak Creek Formation, with generally low 

hydraulic conductivity. (ii) Sand seams of varying continuity within the glacial till, potential pathways for 

preferential flow of contaminants. In the area of the Caledonia Landfill, these seams appear to be 

discontinuous. In area of the OCS Landfill, two continuous sand seams ranging in thickness between 5 to 

10 feet (upper) and 10 to 20 feet (lower) are present. In the absence of geologic boring logs, the 

distribution of the sand to the west is unknown. (iii) Dolomite bedrock below the glacial till serves as the 

uppermost aquifer in the area.499 The aquifers in the glacial/alluvial deposits and Silurian dolomite 

bedrock are hydraulically connected and are sometimes referred-to as the “shallow aquifer.” Whereas 

well logs for most of the impacted residential wells west of the landfills are not available, most, if not all 

are screened in the dolomite bedrock.500

Near surface groundwater in the glacial till in the area of the Oak Creek South Landfill flows generally to 

the northwest and southeast, according to a plot of groundwater elevations recorded in November 2009. A 

plot of water levels in several wells in the till from 1994 to 2009 shows groundwater elevations ranging 

 

495 Lourigan and Phelps, ibid.

496 This site’s Quaternary geology is based on descriptions of the Highway-59/Waukesha (about 25 miles to the 

northwest) and Cedar Sauk/Cedarburg (about 50 miles to the north) Ash Landfills in Zillemer and Fauble (2010). 

497 Schneider (2011) describes a 30 meter-thick exposure of the Quaternary Oak Creek Formation at a lakeshore 

bluff immediately north of the Oak Creek Plant. Several till units in the upper half of the exposure (ranging in 

thickness from 1.2 to 5.2 m each) are separated by layers of sand and gravel or lacustrine sand and silt. The lower 

half of the exposure consists mostly of lacustrine silt and fine sand with till interbeds. The lacustrine and glaciofluvial sediments seem to be much more characteristic of the eastern part of the Oak Creek Formation’s areal extent 

(near Lake Michigan) than farther west, where the Oak Creek Formation consists predominantly of till. 

498 Additional pertinent geologic and hydrogeologic information is presented in Riewe et al., (2000).

499 According to Lourigan and Phelps (ibid), there is a still deeper aquifer consisting of older sandstone, dolomite 

and siltstone bedrock of Ordovician and Cambrian age. Below the Silurian dolomite bedrock a relatively thick shale 

bedrock layer, the Maquoketa Shale, is present. This shale layer acts as an aquitard confining unit and separates the 

shallow aquifer from the “deeper aquifer” in the Ordovician - Cambrian bedrock units.

500 For a geologic cross-section between the Oak Creek South Landfill and Hunt’s Landfill, see Figure 2 in Boulding 

(2013), taken from RMT (2011).
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from 680 to 715 feet. Plots of elevations in the intermediate sand seam in the till in the north area of Oak 

Creek South Landfill and the dolomite (well nests W37 and W39) range in elevation from around 640 to 

655 feet. There is a strong downward gradient in hydraulic head in these well nests (about 40 feet) 

suggesting that rapid downward migration of contaminants would occur if vertical pathways for flow 

were available. National Resource Technologies (NRT) suggests that drops in water levels in the sand 

seam and dolomite may have been influenced by dewatering related to construction of new units at the 

Oak Creek plant in 2005. 501 However, similar drops in elevation in the dolomite occurred in the mid1990s. The very similar elevations and generally parallel fluctuations in the sand seam and the dolomite 

in the above-mentioned well nests suggest the possibility that the dolomite and sand seam are 

interconnected hydraulically.502

Impact and Damage Claims: EIP (2010a) indicates that 12 offsite private wells found contamination 

related to CCR. Two clusters of private wells, the Douglas Avenue Cluster and the Botting Avenue 

Cluster, lie within 1,500 feet of the closed Oak Creek South landfill and the Caledonia Landfill, 

respectively. EIP (2010a) notes that monitoring at these wells has been undertaken since 1989, part of a 

Wisconsin Energy (WE) agreement with the city, though only data from 2002 onward is available. EIP 

(2010a) notes that molybdenum in many of the wells in these clusters had shown exceedances of the 

Wisconsin Department of Natural Resources (WDNR) NR140 Enforcement Standard (ES) of 0.04 mg/L, 

which is also the EPA Lifetime Health Advisory (LHA) level for molybdenum.503 The report also notes 

that boron exceeded its Wisconsin Preventive Action Limit (PAL) of 0.19 mg/L at a number of these 

offsite wells. The contamination was first reported to the residents in August 2009, at which time WE 

voluntarily began to supply bottled water to several dozen residents in the area, though WE did not claim 

responsibility for the contamination. EIP (2010a) finds it significant that there are very high 

concentrations of molybdenum (up to 15 mg/L, 375 times the ES) in leachate from the Caledonia landfill. 

EIP (2010a) also notes that molybdenum, manganese, and sulfate were above the WDNR ES and arsenic, 

boron, fluoride, and mercury were above the PALs in onsite wells. 

WDNR reports the following levels of contamination in monitoring wells around the Caledonia Landfill:

504 arsenic – up to 17μg/L; boron – up to 9.3ppm; sulfate – 260-430ppm (mean: 311.6ppm); and 

manganese - up to 110μg/L. According to WDNR,505 “Additional sampling in the area has found a total 

of 33 private water supply wells with a molybdenum concentration (since 2006) that exceeds the 

Wisconsin groundwater standard of 40 μg/L, out of 149 private wells sampled (22 percent). Some private 

wells in the area have molybdenum concentrations that are less than the Wisconsin (not Federal) 

groundwater standard but greater than 50 percent of the standard.” 

 

501 NRT is a consultant to Wisconsin Electric (WE). According to Boulding (2013), this pumping has also resulted 

in a reversal of groundwater flow from a NE-SW direction to a SW-NE direction.

502 For depth to groundwater, bedrock, soil types, bedrock permeability, and groundwater susceptibility to 

contamination in Milwaukee and Racine Counties, see USGS/Milwaukee (2007) and USGS/Racine (2007).

503 According to the State of Wisconsin’s Molybdenum in Drinking Water website:

http://www.dhs.wisconsin.gov/publications/P0/P00150.pdf (accessed August 2013), the EPA is currently reviewing 

their LHA level for molybdenum in drinking water. In 2013, the Wisconsin Department of Health Services (DHS) 

conducted a review of the scientific literature on molybdenum and determined that for individual well owners,

health will not be affected by drinking water with molybdenum at levels up to 90μg/L. Until EPA completes its 

LHA review, the state will use an interim Health Advisory Level of molybdenum of 90μg/L for individual drinking 

water advisories.

504 Comment to the docket: EPA-HQ-RCRA-2009-0640-6416, Appendix – Section D: Groundwater Impacts from 

Coal Combustion Ash Disposal Sites in Wisconsin, Table 2.

505 WDNR response to EPA’s OSWER and EPA Region 5 inquiries about allegations aired at public hearings: Email 

message to S. Mooney, EPA Region 5, November 2011.
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WE claims506 that EIP (2010a) fails to recognize that the high-molybdenum wells are hydrogeologically 

up-gradient from the power plant and landfills. WE claims that according to an August 11, 2010 NRT 

technical memorandum,507 the weight of evidence strongly suggests that “the source of the high 

molybdenum concentrations is uncertain at this time”, but the monitoring well data support the conclusion 

that the source of molybdenum in the private wells is not at the power plant’s property. WE also claims 

that EIP (2010a) completely ignored the possibility that the elevated groundwater levels might be 

attributed to Hunts Disposal Landfill (HDL), a presumably non-remediated Superfund site up-gradient of 

these same wells,508, 509 or could be naturally occurring in the soils. It notes that the Wisconsin DNR is 

conducting an independent groundwater study to determine the cause.510 USWAG claims that this Site 

does not meet the criteria for a damage case.511 WE has been buying property along County Line Road 

 

506 We Energies’ comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0234.

507 Appendix A to the Comment: sulfate, boron and molybdenum monitoring results from the March 2010-installed 

well nest W45; and a WDNR February 2010 boron and molybdenum monitoring results from residential well 

samples.

508 According to USEPA (2011), the HDL is a 35-acre Superfund Site located to the West and up-gradient (in 

respect to groundwater flow direction in the Dolomite bedrock) of most of the impacted private wells, in a former 

sand and gravel quarry. The landfill reportedly accepted municipal and industrial wastes from 1959 to 1974. In the 

mid-1990s the landfill was capped with clay soil, and a bentonite slurry containment wall was constructed around its 

perimeter. An active groundwater/leachate extraction system was installed at the landfill, consisting of five 

extraction wells. The primary Contaminants of Concern at the HDL include organic compounds such as vinyl 

chloride, benzene, trichloroethene, xylene, polychlorinated biphenyls (PCBs), and various metals such as arsenic, 

chromium, barium, manganese and nickel.

According to EIP (2010a), recent sampling of two private wells on County Line Road immediately north 

and down-gradient of the HDL found concentrations of molybdenum exceeding the ES (both 0.043 mg/L) and boron 

exceeding the PAL (0.470 to 0.477 mg/L). Neither arsenic nor chromium, contaminants of concern related to the 

Superfund Site, were detected in either of these wells (barium was not analyzed), but the levels of molybdenum and 

boron are similar to those in the CCR-contaminated Douglas Avenue and Botting Road well clusters. This suggests 

that the contamination is coming from CCR disposal in the vicinity rather than the other hazardous wastes that were 

placed in the HDL.

509 Similarly, the HDL Site has been recently inferred by EPRI as a possible source of the molybdenum exceedances. 

According to USEPA Region 5 (2011), “The Site achieved construction completion with the signing of the 

Preliminary Close-Out Report on May 7, 1997.” Operation and Maintenance activities have been conducted at the 

Site since the completion of construction. The monitoring program at the Site consists of long-term groundwater 

monitoring, slurry wall monitoring, groundwater containment system monitoring, and landfill gas monitoring. The 

Site achieved the Site-Wide Ready for Anticipated Use designation on September 23, 2009. This designation 

recognizes that all cleanup goals outlined in the Record of Decision have been achieved for site media that may 

affect current and reasonably anticipated future land uses, so that there are no unacceptable risks at the Site. Hence, 

WE’s contention about the ‘non-remediated’ status of this site is incompatible with this Site’s current status. 

Moreover, USEPA Region 5 (2011) states (page 10): “USEPA does not currently believe that the molybdenum 

contamination in private residential wells located northeast of the Site is associated with the HDL Site, but 

additional data is being collected to help resolve this issue.”

510 According to USEPA Region 5 (2011), two aquifers have been found to exist below the HDL, with groundwater 

flowing in a southwesterly direction, toward the Root River (namely, away from the molybdenum-contaminated 

wells!). The upper aquifer, impacted by pollutants found in the landfill and, consequently, subject to remedial action, 

formed out of glacial sand, gravel, and till outwash, is found approximately 25 to 35 feet below ground surface. The 

lower aquifer is composed of dolomite bedrock, approximately 40 - 80 feet below ground surface, and is 

approximately 200 feet thick. This lower aquifer is the source of the community's water supply. However, a 

continuous 15-foot thick clay-till layer, acting as an aquitard, has been detected between the two aquifers beneath 

the HDL Site. Furthermore, “Based on a hydrogeologic evaluation, it was concluded that the contaminated 

groundwater beneath the (HDL) landfill flows into the Root River. Due to the up-gradient location of the nearby 

residential wells, contamination of the drinking water supply from the landfill was not deemed a concern.”

511 Comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211): “No regulatory enforcement actions 

have been taken for the site. However, the Wisconsin Department of Natural Resources (WDNR) has initiated a 

study of groundwater in residential wells in the area and in association with the Hunts Disposal Landfill
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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near the Oak Creek Power Plant. Eight homes have been purchased around the plant near the main 

entrance and surrounding area between 2009 and June 2012.512 By March 2014, WE has purchased 17 

houses and three vacant properties along Highway 32 (Douglass Avenue) and its vicinity, a total of 193.9 

acres, for a total price of $5,228,252. Some of these houses were then demolished and others are slated for 

demolition. WE claims that this initiative is meant to create a “buffer zone”, relieving neighbors from 

increased truck traffic, dust and noise around the adjacent power plant, and that it is not related to the 

elevated molybdenum in some of these properties’ wells. After WDNR relaxed the State’s molybdenum 

groundwater quality enforcement standard from 40 ppb (the federal Health Advisory Level) to 90 ppb (in 

August 2013), WE stopped supplying water to affected residents at the end of 2013.513

In response to NRT’s determination that molybdenum in the private wells was not coming from CCR in 

WE’s landfills EIP (2010a) claims that, for a number of reasons, the landfills are the primary source. 

These reasons include significant ES exceedances for molybdenum and boron in the landfill leachate, as 

well as smaller exceedances in onsite groundwater monitoring near the landfills. EIP (2010a) also notes a 

groundwater monitoring well that has been placed “up-gradient” of the private wells (which is the 

opposite direction of the landfills). Concentrations from this “up-gradient” well are much lower for 

molybdenum and boron (below the ES) and would indicate there is not an up-gradient source of this 

contamination. EIP (2010a) also notes that while the general gradient in groundwater near the landfills is 

away from the private wells, the aquifer is a fractured system where groundwater will often not follow a 

hydraulic-gradient based flow direction.514

 

Superfund Site located approximately 1.5 miles west of the Oak Creek Power Plant. This case does not meet the 

criteria for a damage case because the allegations concerning off-site groundwater impacts showing exceedances of 

specified health-based criteria have not been supported by the information presented in the Reference Document. 

The USEPA classified this site as “Indeterminate” in their 2007 report (Coal Combustion Waste Damage Case 

Assessments, EPA-HQ-RCRA-2006-0796-0015, July 2007) due to insufficient information. No new information has 

been provided pertaining to this site in the allegations to change the USEPA’s prior determination.”

The alleged damage to off-site groundwater from molybdenum concentrations exceeding health-based 

criteria is in dispute. No boron concentrations reported for off-site groundwater in the Reference Document (EIP 

2010a) exceed the Wisconsin enforcement standard of 1.00 milligrams per Liter. Based on information (Natural 

Resource Technology, Inc. (NRT) letter from Bruce Hensel, NRT to Tim Muehlfeld, We Energies: Investigation 

Plan Summary Analysis, Dolomite Groundwater Quality Evaluation, Oak Creek Power Plant, March 30, 2010; and 

NRT, Technical Memorandum from Bruce Hensel: Response to Statements by Environmental Integrity Project 

Regarding the Oak Creek Power Plant in the Report “In Harm’s Way: Lack of Federal Coal Ash Regulations 

Endangers Americans and Their Environment”, November 30, 2010, submitted to Wisconsin DNR on December 2, 

2010) provided by consultants to We Energies, it is unlikely that off-site water wells are impacted from site-related 

activities due to groundwater gradients away from the residential wells and toward the landfills at the site. In 

addition, vertical profiles in nested monitoring wells that extend to the bedrock show that molybdenumconcentrations in groundwater within the overlying till formation are lower than in the bedrock, whereas the 

opposite would be expected if the source was from CCRs (however, this could be attributed to higher sorption of 

molybdenum by clays in the till than by the dolomite: see, for instance, similar topology regarding sulfate 

concentration levels in nested wells in till and underlying dolomite surrounding the Highway 59/Waukesha landfill). 

There is no apparent downward migration of molybdenum-impacted groundwater from the landfills to the bedrock.

The WDNR is continuing their evaluation of data, including the NRT investigation, and has not yet made a 

determination on the source of molybdenum. The allegations also incorrectly assert that WE’s North Landfill 

operated from the “mid-1970s to around 1980.” This North Landfill in fact operated from the mid-1960s to the mid1970s. Further, the allegations incorrectly assert that there are on-site groundwater exceedances of manganese and 

sulfate; WDNR issued site-specific standards for these parameters in May 2010 and on-site background levels are 

still being established (Written Communication, We Energies, November 11, 2011).”

512 Caledonia Patch (2012). 

513 Milwaukee Sentinel (2014).

514 For a more recent discussion on the probable culpability of the Oak Creek/Caledonia landfills and of loci where 

CCRs have been applied freely to fill wetlands and ravines, etc., see under Resolution. 
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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Evaluation against Proven Damage Criteria515

Other Considerations

 The EPA, in its 2007 CCW Damage Case Assessments report (Table 2), classified this case as 

’Indeterminate’.

 Hunts Disposal Landfill, a Superfund site and municipal landfill, is located about 1.5 miles west 

of these CCR landfills. Molybdenum, however, is not listed as a contaminant of concern for the 

site, and the constituents of concern such as arsenic were not detected at elevated levels in the 

residential wells.

 WDNR NR 140 Enforcement Standards are listed as “health-based,” while preventive action 

limits (PALs) are lower standards and not specifically health-based. 

Resolution: According to EIP (2010a), when WDNR began regulating CCR landfills in the late 1980s, 

coal ash disposal had stopped at the Oak Creek North Landfill and was coming to a close at the Oak 

Creek South Landfill. Permits issued for those landfills focused on establishment of a groundwater 

monitoring network and placement of two feet clay caps to reduce infiltration through the unlined 

landfills. The molybdenum-impacted, private drinking water wells southwest of the Oak Creek South 

Landfill and west of the Caledonia Landfill have been monitored by WE since 1989 for a number of 

general chemistry parameters, including metals, as part of local agreements with the City of Oak Creek 

and Village of Caledonia. WDNR did not establish an ES for molybdenum until December 2006, but at 

least as early as 2002, monitoring data showed concentrations of boron in multiple wells that exceeded 

the WDNR PAL for boron of 0.19 mg/L. The first notification to residents that the wells were 

contaminated was a letter dated August 24, 2009 from WE, at which time WE voluntarily began to supply 

bottled water to several dozen residents in the area, though WE did not claim responsibility for the 

contamination.516 The monitoring data for the private wells were also not reported to WDNR until August 

 

515 ICF (2010a).

516 Won, Christine (2010a).

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels (MCLs) 

or other health-based standards measured in 

groundwater at sufficient distance from the 

waste management unit to indicate that 

hazardous constituents have migrated to the 

extent that they could cause human health 

concerns

 Offsite groundwater in residential drinking water wells 

exceeded the health-based WDNR Enforcement 

Standards (ES) for molybdenum, and the Wisconsin 

Preventive Action Limit (PAL) for boron. 

 Onsite groundwater also exceeded the WDNR ES for 

molybdenum, manganese, and sulfate, as well as the 

PALs for arsenic, boron, fluoride, and mercury. 

Criterion 2: Where a scientific study provides 

documented evidence of another type of 

damage to human health or the environment 

(e.g., ecological damage)

 None

Criterion 3: Where there has been an 

administrative ruling or court decision with an 

explicit finding of specific damage to human 

health or the environment

 Wisconsin Energy voluntarily began to supply bottled 

water to several dozen residents in the area in 2009, 

though they did not claim responsibility for the 

contamination. To date WDNR has taken no regulatory 

enforcement action at the site.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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2009, at which time WE was asked to submit an investigation plan. The Plan was submitted on 

September 4, 2009, and approved on September 29, 2009.

NRT determined in March 2010 that molybdenum in the private wells was not coming from CCR in the 

landfills, primarily because the measured groundwater flow direction in the dolomite bedrock (where 

dissolved molybdenum concentrations are significantly higher than in the overlying glacial till) is from 

the west/southwest to the east/northeast, which would place WE’s property up-gradient from the affected 

private wells. 

As of June 2010, WDNR’s investigations are underway to better establish local background and gradients 

to determine if CCRs are source of exceedances. February – March 2010 sampling results of 40 private 

wells, performed by residents in the area using kits of the Wisconsin State Lab of Hygiene, have 

identified nine additional private wells with molybdenum ES exceedances, some of which are located 

about halfway between the HDL and the WE’s landfills,517 and several additional clusters of private wells 

where the PAL for boron have been exceeded. In May 2012, WDNR notified about dozen households 

next to the Oak Creek power plant that the water coming out of their well is not safe for drinking due to 

elevated levels of boron and molybdenum.518

According to WDNR,519 as part of WDNR's site assessment activities, late in 2011 samples were collected 

from select private wells, as well as from monitoring wells at the WE facility and HDL, to be analyzed for 

VOCs, SVOCs and metals, along with molybdenum, boron and strontium isotopes and tritium, to help 

characterize groundwater and identify possible molybdenum and boron sources.520 The study521

concluded that The HDL does not appear to be a source of the molybdenum in area private wells, and the 

data remain inconclusive on whether the WE coal ash fill areas are a significant molybdenum source. 

Concerning boron: while the monitoring wells may have been affected, the boron isotope data and other 

evidence appear to show that the boron in most of the private wells is naturally occurring (boron is known 

to occur naturally in area groundwater). The hydrogeological flow path is complex and the extent of the 

affected area is very large (several miles) and still not fully known. The elevated molybdenum 

concentrations appear to correlate with a natural buried bedrock valley that is oriented in an east-west 

direction across northern Racine County, but a causal relationship between the observed concentrations 

and the buried valley could not be determined.522 The tritium data suggest that most of the water in the 

private water supply wells may be older than 1953 - one could interpret this to mean that molybdenum 

may have entered the water before ash from the Oak Creek power plant was disposed of on the WE 

property. However, mixing of older and younger water may not be ruled out, which might complicate 

interpretation of the tritium results. 

 

517 USEPA Region 5 (2011).

518 http://www.todaystmj4.com/features/iteam/150093905.html.

519 WDNR response to EPA’s OSWER and EPA Region 5 inquiries about allegations aired at public hearings: Email 

message to S. Mooney, EPA Region 5, November 2011.

520 Quarterly groundwater monitoring is conducted at the HDL Site, but since molybdenum has not been a 

compound of concern it is not included in the quarterly analyses. Past samples at the HDL Site were not analyzed for 

molybdenum because it is not a parameter that is included in USEPA's Target Compound List and Target Analyte 

List; it is therefore not one of the parameters typically analyzed at Superfund sites.

521 Lourigan and Phelps (2013).

522 According to PUB-WA-1640 (2013), the WDNR is reaching out to scientists at the Wisconsin Geological and 

Natural History Survey (WGNHS), the U.S. Geological Survey and universities, to review the data and continue to 

study the elevated molybdenum. The southern and southwestern extent of elevated molybdenum levels in 

groundwater has not yet been determined. WDNR is continuing with additional sampling to help determine the 

extent of elevated molybdenum. For the most current map of the Molybdenum Testing Results (August 5, 2013), see 

http://dnr.wi.gov/topic/Groundwater/documents/MolybdenumTestArea.pdf.
IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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ICF (2010a) Rationale: Potential Damage. <Groundwater exceedances of the WDNR Enforcement 

Standards (ES) for molybdenum, manganese, and sulfate have been found onsite. Groundwater 

exceedances of molybdenum was found in offsite private drinking wells that appear to be upgradient of 

the landfill although investigations are underway to better establish local background and gradients to 

determine if the CCRs are the source. There are no administrative ruling or court decisions.>

References

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Environment, Thirty-nine New Damage Cases of Contamination from Improperly Disposed Coal 

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2010. 

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

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

Appendix C, Case #39. ICF, 10/2010.

Won, Christine (2010a): Report well water near power plant contaminated: We Energies supplying 

bottled water to affected residents while seeking source. The Journal Times, June 26, 2010. Accessed 

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IIb. Potential CCR Damage Cases Part II (Cases 33-55) December 2014

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Milwaukee Sentinel (2014): We Energies quietly buying up sites near Oak Creek plant, Milwaukee 

Wisconsin Journal Sentinel, March 8, 2014. Accessed Online March 2014.

http://www.jsonline.com/business/we-energies-quietly-buying-up-sites-near-oak-creek-plantb99219120z1-249144851.html