Alexander Livnat, Ph.D.

12/18/2014

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

This volume comprises 32 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 I (Cases 1-32) December 2014

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IIb. Coal Combustion Residuals

Potential Damage Cases

PART I (Cases PTb01 to PTb32)

(Submitted and Assessed between 2010 – January 2011)
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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TABLE OF CONTENTS

PTb01. Flint Creek Power Plant, American Electric Power - Southwestern Electric Power Company 

(SWEPCO), Gentry, Benton County, Arkansas ...........................................................................................4

PTb02. Independence Steam Station, Entergy - Arkansas Power and Light (AP&L), Newark, 

Independence County, Arkansas...................................................................................................................9

PTb03. Montville Generating Station, NRG Energy/Montville Power LLC, Montville, New London 

County, Connecticut ...................................................................................................................................15

PTb04. Indian River Power Plant, NRG Energy (Formerly: Delmarva Power), Burton Island, Millsboro, 

Sussex County, Delaware ...........................................................................................................................19

PTb05. Big Bend Station, Tampa Electric Company (TECO), Apollo Beach, Hillsborough County, 

Florida.........................................................................................................................................................26

PTb06. CD McIntosh Jr. Power Plant, City of Lakeland, Lakeland, Polk County, Florida ......................31

PTb07. Curtis H. Stanton Energy Center, Orlando Utility Commission (OUC), Orlando, Orange County, 

Florida.........................................................................................................................................................36

PTb08. Seminole Generating Station, Seminole Electric Cooperative Inc. (SECI), Palatka, Putnam 

County, Florida ...........................................................................................................................................40

PTb09. Joliet Generating Station 9 – Lincoln Stone Quarry Landfill, Midwest Generation, Joliet, Will 

County, Illinois ...........................................................................................................................................43

PTb10. Marion Plant, Southern Illinois Power Cooperative, Marion, Williamson County, Illinois.........51

PTb11. Venice Power Station, Union Electric Company/Ameren Energy – AmerenUE, Venice, St. Clair 

and Madison Counties, Illinois...................................................................................................................57

PTb12. Clifty Creek Station, Indiana Kentucky Electric Corporation (IKEC), Madison, Jefferson County, 

Indiana ........................................................................................................................................................62

PTb13. Lansing Station Ash Ponds and Landfill – Alliant/IPL, Lansing, Allamakee County, Iowa .......68

PTb14. George Neal Station North Landfill, Berkshire Hathaway - MidAmerican Energy Company, 

Sergeant Bluff, Woodbury County, Iowa ...................................................................................................73

PTb15. George Neal Station South Ash Monofill, Berkshire Hathaway – MidAmerican Energy 

Company, Salix, Woodbury County, Iowa .................................................................................................79

PTb16. Mill Creek Station, Louisville Gas and Electric (LG&E), Louisville, Jefferson County, Kentucky

....................................................................................................................................................................82

PTb17. Shawnee Fossil Plant, Tennessee Valley Authority, Paducah, McCracken County, Kentucky....87

PTb18. Spurlock Power Station, Eastern Kentucky Power Cooperative (EKPC), Maysville, Mason 

County, Kentucky .......................................................................................................................................95

PTb19. Big Cajun 2 Power Plant, NRG Energy - Louisiana Generating, LLC, New Roads, Pointe Coupee 

Parish, Louisiana.......................................................................................................................................100

PTb20. Dolet Hills Power Station, CLECO Power LLC, Mansfield, De Soto Parish, Louisiana ...........105
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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PTb21. Rodemacher Power Station, CLECO Power, LLC, Lena, Rapides Parish, Louisiana ................109

PTb22. Brandywine Coal Ash Landfill, Mirant Mid-Atlantic, LLC, Brandywine, Prince George’s 

County, Maryland .....................................................................................................................................113

PTb23. Mirant Dickerson’s Generation Station’s Westland Disposal Site, Montgomery County, 

Maryland...................................................................................................................................................118

PTb24. Karn/Weadock Generating Facility, Consumer Energy, Saginaw, Bay County, Hampton Charter 

Township, Michigan .................................................................................................................................123

PTb25. Marquette Board of Light & Power Pine Hill Landfill, Negaunee Township, Michigan ...........130

PTb26. We Energies Presque Isle Power Plant Landfill, Marquette, Michigan.......................................131

PTb27. Muskegon County Offsite Fly Ash Monofill, Moorland Township, Michigan ..........................135

PTb28. John Warden Ash Site, L’Anse, Baraga County, Michigan........................................................138

PTb29. Consumer Energy B.C. Cobb Landfill, Muskegon County, Michigan .......................................141

PTb30. Consumers Energy J.H. Campbell, West Olive, Port Sheldon Township, Ottawa County, 

Michigan ...................................................................................................................................................143

PTb31. Sheldon Station, Nebraska Public Power District, Hallam, Lancaster County, Nebraska ..........145

PTb32. Asheville Steam Electric Plant, Duke Energy (formerly: Progress Energy), Arden, Buncombe 

County, North Carolina.............................................................................................................................148
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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PTb01. Flint Creek Power Plant, American Electric Power - Southwestern Electric Power 

Company (SWEPCO), Gentry, Benton County, Arkansas

Type: Landfill and Surface Impoundments.

Background and Description: The 528 MW Flint Creek Power Plant site1contains a 40-acre landfill 

which has been in operation since 1978 but was only permitted in 1994.2 The current landfill permit 

allows for disposal of dried fly ash and dredged bottom ash. The landfill has had a liner (a 6” compacted 

clay) only since 1994, and as of April 2010, also a leachate collection system.3 The site also contains a 

42.8-acre primary ash pond and a 3.7-acre secondary ash pond located south of the plant operations area, 

both commissioned in 1978.4 Both ponds are unlined.5 The ponds receive primarily bottom ash, but also 

fly ash and coal pile and landfill runoff; the primary pond receives also boiler slag.

6 The SWEPCO ponds 

at Flint Creek are dredged for re-use of the solids and/or their disposal elsewhere. The ponds and their 

dredged materials are exempt from regulation under the “use of recovered materials” provision in ADEQ 

 

1 Name plate capacity is 558 MW. The plant occupies 1,500 acres. The dry bottom pulverized coal boiler furnace

uses 5,000 tons/day of low-sulfur, subbituminous Powder River Basin coal from Wyoming, shipped via Kansas City 

Southern Railway; the ratio between fly ash and bottom ash plus boiler slag is approximately 70:30: EPRI (2002)

and https://www.swepco.com/info/projects/FlintCreekPlant/. According to 

https://swepco.com/info/news/ViewRelease.aspx?releaseID=1187, it is the only baseload power plant in Northwest 

Arkansas. To comply with new EPA regulations, the Plant must install additional environmental controls to continue 

operation beyond 2015; on February 8, 2012, American Electric Power subsidiary SWEPCO asked the Arkansas 

Public Service Commission to review the company’s plans to install such environmental controls on the Flint Creek 

Power Plant.

2 Approximately 700 acres of SWEPCO’s Flint Creek Power Plant’s 1,600 acres are designated as wildlife habitat. 

In early 2007, Audubon Arkansas designated the Flint Creek property as an “Important Bird Area” (IBA). 

SWEPCO Lake, the year-round warm water power plant’s 500-acre reservoir, attracts wintering American Bald 

Eagles and many other avian species. The plant has been home to the Eagle Watch Nature Trail since 1999: See 

https://www.swepco.com/info/news/ViewRelease.aspx?releaseID=457, 

https://www.swepco.com/environment/EagleWatch.aspx, and 

https://www.swepco.com/global/utilities/lib/docs/environment/AEPSWEPCO%20Eagle%20Watch%20Wildlife%20Checklist.pdf

3 According to ADEQ’s comment to the October 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0249), from 

1978 to 1994, in situ clay was used as a liner and now underlies the eastern two-thirds of the landfill. 

4 Their corresponding capacities are 484.1 acre-ft and 24.3 acre-ft , respectively; and the actual CCR volume stored 

in 2009 was 80,700 cubic yards in the primary pond and ‘minimal’ in the secondary pond (from which ash is 

routinely removed for beneficial use). According to EIP (2010a), the primary pond is a treatment unit that is 

permitted to receive, other than CCR and associated waste, also 0.03 million gallons a day (MGD) of treated 

domestic wastewater from the town of Gentry’s wastewater treatment plant. The primary pond was the subject of

EPRI’s (2002) detailed study. The ponds provide treatment through settling and neutralization. The estimated 

combined flow through the ash ponds that discharges to SWEPCO Lake is 7.29 MGD, but the flow can be up to 

9.83 MGD. For the Plant’s layout, see Figs. 2-1 and 2-9 in EPRI (2002).

5 However, according to ETTL Engineers & Consultants August 2010 Flint Creek Power Station Existing Ash 

Storage Ponds Embankment Investigation report [in Dewberry & Davis LLC (2011), Appendix A, Document 13], 

the permeability of the foundation soils ranges from 2.4x10-8cm/sec to 9.4x10-9cm/sec. The permeability of the 

weathered rock layers was not tested but due to the possibility of interconnected voids, the permeability of the rock 

mass could vary widely and is estimated to range from1x10-3cm/sec to 1x10-8cm/sec.

6 Southwestern Electric Company (2009). According to Dewberry & Davis LLC (2011), the primary and secondary 

bottom ash ponds are adjacent to the plant and the plant’s cooling pond. These ponds are divided into two 

impoundments in series. The cross valley embankments of both are constructed of native clayey fill that impounds 

bottom ash and ash pond water. The primary dam is an 820-foot long cross-valley dam. The secondary dam is a 750-

foot long cross-valley dam. The construction of these ponds took place between 1974 and 1978.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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Regulation 22.7 The Flint Creek Power Plant is located next to the Little Flint Creek, a tributary of Flint 

Creek and the Illinois River. SWEPCO Lake, a 500-acre cooling reservoir for the power plant, is part of 

the watershed.8 The Plant’s three Outfalls are subject to a National Pollutant Discharge Elimination 

System (NPDES) permit.9

The first groundwater monitoring at the site was undertaken in 1994. The Arkansas Department of 

Environmental Quality (ADEQ) required the facility to start assessment monitoring in 2005 due to 

statistically significant increases in selenium, sulfate, pH, and total dissolved solids (TDS); however, no 

offsite groundwater data is available. The site is underlain by the cherty limestone of the Early 

Mississippian Boone Formation. Solution waters create some caves and voids throughout the Boone and 

it is not uncommon to penetrate a void while drilling this formation. The Boone Formation is 

approximately 300 to 350 feet thick and is fractured by faults and joints, and karst features are common.

In the area of Little Flint Creek the thickness of Boone could reach 350 feet.10 The Boone Formation is 

underlain and confined by the Chattanooga Shale, which is typically 25 to 30 feet thick. The Chattanooga 

is underlain by a thick sequence of Paleozoic sedimentary rocks of Devonian-, Silurian-, and Ordovicianage. Depth to bedrock ranged from approximately 10 to 55 feet below ground surface.

The shallow aquifer at the Flint Creek plant is confined and present within the transition zone bedrock 

unit (lower residual soil). The transition zone bedrock consists of friable limestone with sand- to gravelsized chert. This unit is laterally continuous and varies in thickness from 1 to 13 feet. (EPRI, 2002, Fig. 5-

2). The shallow aquifer is confined by an overlying silt and clay unit (upper residual soil) that contains up 

to 30 percent sand- to gravel-sized chert. The upper residual soil unit is laterally continuous and ranges in 

thickness from 2 to 20 feet (EPRI, 2002, Fig. 5-3). The thinner portions of this unit are present underneath 

the ash basin. The shallow aquifer is confined below by competent bedrock.

Hydraulic conductivities measured in wells located near the ash basin and screened within the shallow 

aquifer (transition zone bedrock) ranged from 3.5 x 10-5to 2.9 x 10-3cm/sec (EPRI, 2002, Table 5-2). The 

hydraulic conductivity measured in well FCMW-5, also in the upper aquifer, but located north of the ash 

basin near the condenser cooling water discharge, was 1.2 x 10-2cm/sec. This variation in hydraulic 

conductivity is most likely due to varying degrees of weathering within the transition zone bedrock, and 

varying units spanning the screened intervals of the wells.

Based on levels measured in August 1996, within the shallow confined aquifer, groundwater contours 

generally follow the surface topography, which reflects bedrock topography (EPRI, 2002, Fig. 5-4). 

Groundwater flow is toward the primary ash basin and the SWEPCO reservoir, following essentially 

historic areas of drainage. Groundwater divides are defined by bedrock (topographic) highs. Horizontal 

 

7 Arkansas Pollution Control and Ecology Commission (2007).

8 https://swepco.com/info/news/viewRelease.aspx?releaseID=944. According to the August 2008 issue of Rural 

Arkansas, the Arkansas Game and Fish Commission recently built a boat launch ramp and fishing pier at the lake: 

http://www.aecc.com/pdf/0808AUG.pdf

9 No. AR0037842; however, according to Dewberry & Davis LLC (2011), Appendix A, Document 7, the only 

monitored parameters are pH, TSS, Oil & Grease, total residual chlorine, and biological toxicity.

10 According to ETTL Engineers & Consultants August 2010 Flint Creek Power Station Existing Ash Storage Ponds 

Embankment Investigation report [in Dewberry & Davis LLC (2011), Appendix A, Document 13], there are minor 

faults running northeast and southwest approximately two to five miles in either direction of this site. Structures that 

formed on the flank of the Ozark dome of the late Paleozoic Ouachita orogeny are identified as monoclinal folds that 

displace the generally flat lying Boone Formation. Both east striking normal faults and broader northeast striking 

dextral strike-slip fault zones probably reflect Pennsylvanian-Early Permian deformation of the developing Ouachita 

orogeny. The caves and voids throughout the Boone can also produce localized sinkholes. 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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hydraulic gradients (0.15 to 0.027, estimated in EPRI 2002, Fig. 5-4), the geometric mean hydraulic 

conductivity (4.7 x 10

-4

cm/sec) for wells finished in the transition zone bedrock near the primary ash 

basin (FCMW-1, FCMW-3S, FCMW-3D, and FCMW-4), and an assumed effective porosity of 0.30 were 

used to calculate groundwater flow velocities within the shallow aquifer. Resulting velocities ranged from 

250 ft/yr for the area of steep gradient between the ash delta at the inlet to the primary basin and the

SWEPCO reservoir, to 46 ft/yr near the secondary settling basin.11

Impact and Damage Claims: According to EPRI (2002), based on seven monitoring wells around the 

main impoundment,12 down-gradient groundwater samples were dominated by sodium, calcium, and 

sulfate. Concentrations of all three parameters, as well as boron, were elevated relative to the one upgradient groundwater location and background levels, suggesting that all down-gradient wells were 

impacted by seepage from the impoundment.13

EIP (2010a) indicates that onsite groundwater is contaminated with barium, cadmium, chromium, lead, 

and selenium at levels greater than EPA Maximum Contaminant Levels (MCLs) and Arkansas 

Groundwater Protection Standards (GWPSs); with levels of iron, manganese, and silver above the GWPS; 

and pH, sulfate, and TDS at levels exceeding EPA secondary MCLs (SMCLs).14 EIP (2010a) also notes 

that surface water samples of the landfill leachate were found to contain a number of elevated 

contaminant concentrations.

EarthJustice15 claims that a 2009 groundwater assessment yielded selenium at 3-times the MCL, sulfate, 

at 8-times the SMCL, and TDS, at 5-times the SMCL in monitoring well NE-3. A leachate seep 

discharges beyond the landfill into a stream that drains into unmonitored impoundments which discharge 

off-site to SWEPCO Lake, a recreational reservoir devoid of monitoring.16 Samples collected between 

2007 and 2010 had selenium up to 8.4 times the MCL, chromium up to 3.4 times the MCL, boron up to 4 

times EPA’s Child Health Advisory, sulfate - up to 4.5 times DWA, and TDS - up to 7.4 times the SMCL.

The second Quarter 2011 groundwater monitoring report results show that two of the ten wells exceed 

GWPS for selenium: B-02 (50 feet west of the landfill) and NE-3 (360 feet southwest of the landfill, an 

 

11 According to EPRI (2002), the Paleozoic-age rocks of the Ozark Highlands are underlain by seven water-bearing 

hydrologic unit. These hydrologic units can be grouped into two main aquifer types, referred to as porous rock 

aquifers and fractured rock aquifers. Porous rock aquifers, consisting predominately of sandstone, yield large 

quantities of water to wells in the northern plateau. Fractured rock aquifers consist predominately of limestone, 

dolomite, sandstone, and shale. Groundwater in these aquifers occurs mostly in secondary openings such as 

fractures, joints, bedding planes, and solution channels. Wells in these aquifers are generally less than 300 feet-deep 

and yield less than 10 gpm. The Boone Formation is a fractured rock aquifer, and is a source of domestic water 

supply in the Flint Creek area.

12 Number of monitoring wells in the mid-1990s based on Figs. 5-1, 5-2, and 5-5, and Table 5-1 in EPRI (2002).

13 Specifically, highest boron concentration in down-gradient wells was 1.3 mg/L; sulfate – 335 mg/L, and pH: as 

low as 5.1, as compared to maximum corresponding concentrations of these parameters in background wells: 0.21

mg/L, 84 mg/L, and 6.5 to 8.2, for boron, sulfate, and pH, respectively.

14 From 1994 through 1996, groundwater monitoring documented barium at 1.2 times the MCL, cadmium at twice 

the MCL, lead at 33 times the MCL, iron at 4.8 times the GWPS, manganese at 33 times the GWPS, and silver at 1.1 

times the GWPS in multiple groundwater wells.

15 Comment to docket EPA-HQ-RCRA-2009-0640-6315.

16 A high-pH leachate seep or spring (SW-1) rich in selenium, arsenic, chromium, boron, and molybdenum was 

discovered discharging 3-5 gallon/minute from the southeastern corner of the landfill in December 2006. The water 

was flowing toward the impoundment, but most infiltrated into the ground beforehand. The impoundment 

discharges into SWEPCO Lake.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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assessment monitoring well installed in August 2009 down-gradient of B-02),17 with 108 μg/L and 123 

μg/L, respectively. These two wells have also high sulfate and TDS levels. The number of wells with 

exceedances of secondary guidelines is: TDS – 2; sulfate -2, manganese – 3, iron – 2, and pH – 3. 

Selenium exceeded the GWPS in a monitoring well first time in the first Quarter sampling event in 2009.

ADEQ claims18 that selenium and sulfate are the main Contaminants of Concern, and that reports on 

elevated cadmium and barium are based on one or two early sampling events in 1995/96 that have not 

reoccurred since. Chromium and lead have never statistically exceeded the MCL at any well. Cadmium 

and lead are also very low to non-detect in the leachate, though chromium in the leachate is above the 

MCL during about half of the sampling periods.

Between August 2009 and June 2011, nine wells were installed as part of the Assessment Monitoring.19

AEP claims20 that the closest down-gradient drinking water well is located on the power plant’s property, 

about 1,670 feet west of the landfill. This well has been sampled and analyzed for primary MCLs 

(arsenic, barium, cadmium, chromium, selenium, and mercury), action levels (lead and copper), and 

SMCLs (silver, iron, manganese, and zinc). According to AEP, the results for all the measured parameters 

were below their respective standards.

Evaluation against Proven Damage Criteria21

 

17 EPRI (Comment to docket EPA-HQ-RCRA-2009-0640-9765) claims that this monitoring well is located on site.

18 Comment to docket EPA-HQ-RCRA-2011-0392-0249.

19 According to EPA-HQ-RCRA-2011-0392-0249, between 2008 to ‘present’ - 20 parameters are measured 

quarterly in wells over the GWPS, 20 parameters are measured semi-annually in the remaining wells, and 31 

parameters are measured triennially.

20 AEP’s Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0202, and EPRI’s comment to the 

proposed CCR rule docket: EPA-HQ-RCRA-2009-0640-9765.

21 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 EPA MCLs for barium, 

cadmium, chromium, lead and selenium.

 Onsite groundwater data exceeded EPA SMCLs for pH, 

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 samples of leachate collected from a discharge 

point at the southeast corner of the landfill contain elevated 

levels of barium, boron, chromium, lead, selenium, sulfate, 

and TDS and have alkaline pH readings.

Criterion 3: Where there has been an 

administrative ruling or court decision 

 ADEQ issued a Notice of Deficiency (NOD) to SWEPCO in 

2008 due to an uncontrolled discharge of CCR leachate and 

requested that AEP install a leachate collection system. As of 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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Resolution: ADEQ required the facility to start assessment monitoring at 2005 due to statistically 

significant increase in selenium, sulfate, and TDS. GWPS were set at this time that are based on national 

MCLs, and otherwise – are risk-based.

ADEQ issued a Notice of Deficiency (NOD) in 2008 due to uncontrolled discharge of CCR leachate and 

requested that AEP install a leachate collection system and collect leachate samples from the discharge 

point, when present, at the southeast corner of the landfill. According to both ADEQ and AEP,22 the SW1 seep was collected and treated as of April 2010. The number of monitoring wells increased from four23

(1994-2001) to sixteen (June 2011). In addition, the sampling frequency and the number of analyzed 

parameters also increased significantly. 

AEP prepared a “Nature and Extent Workplan” in June 2009, to “characterize the nature and extent of 

selenium in groundwater.” The facility is assessing corrective measures, with status report due by January 

2012. An intermediate liner (i.e., over existing CCR fill) and leachate collection system would be placed 

over the ash currently in the landfill to minimize infiltration into the lower ash body. 

USWAG claims that this site does not qualify as a damage case.24

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

barium, cadmium, chromium, lead, and selenium, and the SMCLs for pH, sulfate, and TDS have been 

found onsite. Leachate samples from the landfill contain elevated levels of barium, boron, chromium, 

lead, selenium, sulfate and TDS; however, there is no scientific study available that explicitly documents 

evidence of damage to human health or the environment. ADEQ issued an NOD to SWEPCO and 

requested installation of a leachate collection system; however this also does not have an explicit finding 

of specific damage.>

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

2010. 

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

 

22 Comments to the October 2011 NODA docket: ADEQ comment EPA-HQ-RCRA-2011-0392-0249 and AEP

comment EPA-HQ-RCRA-2011-0392-202.

23 The statement about only four monitoring wells between 1994 and 2001 is inconsistent with the well-document 

record in EPRI (2002) of seven monitoring wells associated with the main impoundment during the execution of that 

study in the mid-late 1990s.

24 Comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211): “Arkansas Department of 

Environmental Quality (ADWQ) required the site owner to initiate assessment monitoring at the landfill as a result 

of statistically significant increases in January 2005 for selenium, sulfate, TDS, and pH. There are no other citations 

or information related to regulatory actions. 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 allegation in the reference claims that 

there are off‐site groundwater exceedances, but there is no off‐site groundwater quality data provided. The 

monitoring well referenced as being located off‐site is within the property boundary of the site.”

with an explicit finding of specific damage 

to human health or the environment

March 2010, no leachate collection system has been 

installed.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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

Appendix C, Case #1. ICF, 10/2010.

Arkansas Pollution Control and Ecology Commission (2007): Arkansas Pollution Control and Ecology 

Commission's Regulation No. 22: Solid Waste Management Rules. APCEC # 014.00-022 Exhibit C. 

Approved by APCEC on March 28, 2007.

http://www.adeq.state.ar.us/regs/files/reg22_final_080426.pdf

EPRI (2002): Field Evaluation of the Comanagement of Utility Low-Volume Wastes with High-Volume

Coal Combustion By-Products: FC Site. 1005266, Final Report, August 2002. Cosponsor Utility Solid 

Waste Activities Group. Accessed Online September 2014.

http://www.epri.com/abstracts/Pages/ProductAbstract.aspx?ProductId=000000000001005266&Mode=do

wnload

US EPA, Facility Registry System, Facility Detail Report, SWEPCO Flint Creek Power Plant. Accessed 

Online April 2012.

http://oaspub.epa.gov/enviro/fii_query_dtl.disp_program_facility?p_registry_id=110000452910

Southwestern Electric Company (2009): Flint Creek Station Response to EPA ICR (no date). Accessed 

Online April 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/survey-flint.pdf

Dewberry & Davis, LLC (2011). Coal Combustion Residue Impoundment Round 9 - Dam Assessment 

Final Report, Flint Creek Power Plant, Bottom Ash Dike, SWEPCO, Gentry, Arkansas, December 2011. 

Accessed Online November 2012.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/aep-flint-creek-final.pdf

PTb02. Independence Steam Station,25 Entergy - Arkansas Power and Light (AP&L), 

Newark, Independence County, Arkansas

Type: Landfill and Wastewater Recycle and Surge Ponds.

Background and Description: The 1,700 MW, two generation units Independence Steam Station site 

contains a 70-acre fly ash and bottom ash landfill, two wastewater-recycle ponds, a surge pond, and a coal 

storage pile. The landfill and surge pond are each nearly 3⁄4-mile long. A Class 3N Landfill permit (No. 

0200-S3N) was issued in 2002 for the coal combustion residuals’ (CCR) landfill which has been in 

operation since 1983.26 The permit required that AP&L establish baseline water quality conditions. AP&L 

has also applied for a landfill expansion and the Arkansas Department of Environmental Quality (ADEQ) 

 

25 The Plant’s nameplate capacity is1700 MW (1678 MW actual), consisting of two generation units (year of inservice in parenthesis): 850 MW (1983) and 850 MW (1984). According to http://www.aecc.com/about/generationfacilities/, the Station is fueled by low-sulfur Powder River Basin coal mined near Gillette, Wyoming.

26 According to an Arkansas Department of Environmental Quality (ADEQ) comment to the October 2011 NODA 

docket: EPA-HQ-RCRA-2011-0392-0249, the facility is still placing waste in the same landfill which has 70 acres 

used for ash disposal out of a total permitted area of 335 acres. About 90 percent of the landfill has no liner, but 

rather in-situ clay. Half of the most recent cell was built with 18”-thick compacted clay with a maximum hydraulic 

conductivity of 1 x 10-5cm/sec.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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will require that the lateral expansion to the east of the existing landfill have a leachate collection system. 

The leachate is to be disposed of in the surge pond. The groundwater monitoring system established 

according to the Groundwater Monitoring System Certification comprises five up-gradient wells and three 

new down-gradient wells along the facility’s eastern side.27 There are reportedly 25 irrigation wells and 

three drinking water wells within a two-mile radius of the landfill. Several wells are immediately adjacent 

to the plant property; however, no offsite groundwater monitoring data is available.28 The plant has a 

National Pollutant Discharge Elimination System (NPDES) Permit.29

The Independence Station is located on Quaternary alluvial deposits of the White River. About 15 to 30-

feet thick, inter-bedded sand-silt, clay, and clay-silt overlie some 45-65 feet thick older alluvial and 

terrace deposits of coarse sand and gravel. The alluvial system rests upon the eroded surfaces of 

Paleozoic-age chert, limestone, sandstone lenses, and carbonaceous shale. These bedrock deposits outcrop 

further to the west, in the adjacent Ozark Plateau. The coarse alluvial deposits comprise the uppermost, 

laterally extensive regional aquifer. The top of the semi-confined to confined aquifer is typically at 18-26 

feet below ground surface, fluctuating between 1.6-6.5 feet annually.30 Groundwater flow is to the east to 

southeast, towards the Black River,31 but groundwater flow direction will vary depending on recharge 

conditions and irrigation pumping. Groundwater quality varies from the baseline calcium-magnesiumbicarbonate type to calcium-magnesium-bicarbonate-sulfate and calcium-bicarbonate-sodium-chloride 

type, depending on potential off-site agricultural and on-site plant source areas.32

Impact and Damage Claims: EIP (2010a) indicates that onsite groundwater is contaminated with 

arsenic,33 cadmium,34 and lead,35 occurring at levels greater than EPA Maximum Contaminant Levels 

 

27 Entergy (2002). According to EPA-HQ-RCRA-2011-0392-0249, the monitoring system for the entire power plant 

site was installed and sampled from 1991 through 2008. Groundwater monitoring has been performed at eight wells 

around the landfill since 2002. The current permit requires semi-annual monitoring of 16 parameters (general water 

quality parameters plus strontium, boron, and arsenic). Samples from the most recent sampling events were also 

analyzed for chromium, molybdenum, mercury, and selenium in anticipation of future changes to the groundwater 

sampling plan in connection with the proposed permit modification. Statistical analysis is not currently run on 

chromium, molybdenum, mercury, and selenium.

28 The Plant has two drinking water supply wells that the Arkansas Department of Health (ADH) tests on a regular 

basis. According to Entergy’s comment to the October 2011 NODA (EPA-HQ-RCRA-2011-0392-0227), all ADH 

reports have stated, “the finished water quality is within the allowable limits of the primary drinking water 

standards.”

29 The NPDES Permit (AR0037451) focused on runoff from coal piles and various non-CCR waste streams 

including metal waste cleaning wastes, sanitary landfill, and cooling tower blowdown outfalls. Along with CCR, the 

surge pond and the recycle ponds handle various process wastewaters.

30 Entergy (2004).

31 The Black River discharges into the White River, 2.5 miles downstream from the power plant.

32 Entergy (2002).

33 Entergy counters (in its comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0227) that

arsenic has only been detected above the current MCL in two of 379 samples (1991-present) that have been 

analyzed for arsenic. In September 1992, arsenic was detected in the samples from wells 409 and 410 (located near 

the recycle pond and cooling towers, respectively) at concentrations that were above the current 10 μg /L MCL but 

below the 50 μg/L MCL applicable at the time of sampling. Arsenic has not been detected above the MCL since 

September 1992.

34 Entergy counters (in its comment to the 2011 NODA docket, ibid) that cadmium was detected in only one of 396 

groundwater samples analyzed for cadmium (1991-1996). Cadmium was above the 0.005 mg/L MCL in the sample 

from well 410 (0.006 mg/L) in February 1993. Cadmium was not detected above the MCL in sampling events

subsequent to February 1993.

35

 Entergy counters (in its comment to the 2011 NODA docket, ibid) that lead was detected at a concentration above 

its MCL in one of 396 samples that were analyzed (1991-1996). In September 1992, lead was above the current 15 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

11

(MCLs), and iron, manganese, pH, sulfate, and total dissolved solids (TDS), exceeding EPA secondary 

MCLs (SMCLs).36,37 EIP (2010a) also notes that nearby farm irrigation systems draw groundwater from 

beneath the landfill and surge pond towards the eastern, northeastern, and southeastern property lines; and 

that a number of wells right on the plant property line have shown exceedances of SMCLs, noting that 

this would indicate an extremely likely offsite contamination. 

According to EIP (2010a), AP&L attributed Statistically Significant Increases (SSIs) of TDS, sulfate, and 

strontium in one well (C-413) near the coal storage pad to off-site agricultural contamination. AP&L 

based this conclusion upon the well’s location near the northern property line (north of the coal pile), on 

the interpretation of groundwater flow directions during winter and spring months as being towards plant 

production and drinking water wells, and a change in off-site crops from soybeans to rice in the spring of 

1993. EIP (2010a) claims that AP&L’s interpretation was flawed for the following reasons: (i) it failed to 

consider that well C-413 is down-gradient of the coal pile during summer months when off-site irrigation 

pumping is the greatest and thus pulling groundwater away from coal pile. (ii) Rice generally requires 

more water for irrigation; therefore, more pumping for rice should increase the rate of flow of 

contaminated water away from the Plant’s property. (iii) Increased TDS, strontium, and sulfate are classic 

indicator parameters of CCR runoff at C-413, and are consistent with groundwater flow to the north from 

pumping. Finally, (iv) there are no off-site wells north of the property line to demonstrate that off-site 

degraded groundwater quality was caused by agricultural uses.38

 

μg/L MCL in the sample from well 410. There was no MCL for lead in 1992, but there was the copper-lead rule 

where a limit of 15 μg /L lead applied to public drinking water supplies (related to leaching of lead and copper in 

pipes). No lead was detected above the MCL in sampling events subsequent to September 1992. Consequently, sitewide monitoring for heavy metals ceased in 1997 with ADEQ concurrence because there were so few metal 

detections during the 1991-1996 monitoring period.

36 Thirty-four monitoring wells have documented, since the 1990s, exceedances of federal MCL for arsenic (up to 6 

times the MCL), cadmium (1.2 times the MCL), and lead (1.5 times the Federal Action Level), and SMCL 

exceedances for iron (131 times the SMCL), manganese (167 times the SMCL), total dissolved solids (TDS) (3.6 

times the SMCL), and sulfate (4 times the SMCL). In addition, low pH levels (5.5 units) have been detected.

37 Based on the 2002 to 2007 data: (i) Arsenic exceeded the MCL by more than six times in one well (including a 

September 2006 reading of 0.061 mg/L in 602S). The well is located in the coal pile area near the Plant’s production 

wells. AP&L rejected that result and other metal results because of apparent high turbidity in the well. (ii) The 

highest reported TDS (910 mg/L in October 2003 in 603S), sulfate (455 mg/L in October 2005, in 603S), and the 

most frequent exceedances of SMCLs were associated with wells closest to the landfill (wells 511S, 603S, 604S, 

605S, and 606S). (iii) TDS concentrations exceeded the SMCL for virtually every sampling event since October 

2003 in wells 604S and 605S, located approximately 270 feet and 180 feet, respectively, from the eastern property 

line where drawdown from off-site irrigation occurs. (iv) A statistically significant increase (SSI) in chloride 

concentrations was reported in well 605S. (v) A SSI of manganese greater than the SMCL was reported in well 

604S, which is located along the eastern property line.

Based on the 2007 to 2009 data, (i) Boron concentrations are the highest in the wells closest to the landfill 

and the surge pond. These include 0.319 mg/L at well 603S and 0.607 mg/L at well 511S. (ii) The highest reported 

TDS and sulfate concentrations occurred in wells 511S, 603S, 604S, and 605S, which surround the CCR landfill 

with maximum TDS of 820 mg/L and sulfate of 288 mg/L in well 603S in October 2007. (iii) TDS concentrations 

were greater than the SMCL at five wells. Two of them - wells 604S and 605S - are the down-gradient landfill wells 

adjacent to the eastern property line.

38 Entergy counters (in its comment to the 2011 NODA, ibid) that (i) TDS and sulfate are also classic indicators of 

agricultural impacts from irrigation return water and sulfur-containing fertilizers used on rice and soybeans; and (ii) 

off-site agricultural impacts to groundwater along the northern property have been well documented. Irrigation water 

returns substantial volumes to groundwater especially where rice is concerned because rice requires more water for 

irrigation. High mineralization in irrigation return flow makes it a prime source of pollution of groundwater. 

Geochemical analysis of groundwater samples from the northern perimeter show a water type (having elevated 

levels of TDS, chloride, and sodium) that is very different from that observed beneath other parts of the Plant.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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The 2002 landfill permit required wells to be sampled quarterly for two years to establish “baseline water 

quality conditions” and samples to be collected semi-annually thereafter. The permit required monitoring 

for 28 heavy metal and indicator parameters and statistical analyses of increases in concentrations as a 

basis for corrective actions. However, a 2007 groundwater monitoring report indicates that the in-depth 

monitoring required by the permit is not being performed: sampling only includes 17 parameters and, of 

those, only one, arsenic, is a heavy metal.39 Five new wells, 602S through 606S, have been installed. Two 

of those, 604S and 605S, are along the eastern property boundary and down-gradient from the landfill. 

Contamination from these wells is moving east beyond the property boundary. 

In a 2009 letter from Entergy to ADEQ to address ADEQ’s concerns that groundwater monitoring was 

insufficient at the ash landfill and other concerns about the lack of unaffected background or up-gradient 

wells, Entergy stated that it would not use pre-2002 groundwater data to determine background, pre-CCR 

disposal water quality, even though monitoring data from 1990 and onwards exists. Instead, AP&L 

suggested using recent groundwater data to establish statistical “background” levels.40 

ADEQ states41 that EIP’s (2010a) claims about MCL exceedances of arsenic, lead, and cadmium within 

five locations based on the early 1990s data and one – from 2006 data do not amount to SSIs because all 

six of these locations had only one or two samples that exceeded the MCL out of numerous samples 

taken; each of the locations had at least six samples where these constituents had been below detection 

level after the recorded exceedances. ADEQ claims that because high levels of arsenic, lead, and 

cadmium have not been seen in other monitoring locations, cadmium and lead were dropped as 

monitoring parameters in 2004. Recent groundwater monitoring results (May 2011 sampling) have no 

wells with primary MCL exceedances of the following sampled constituents: arsenic, chromium, 

mercury, and selenium. Of the eight wells around the landfill, the number of wells with water quality that 

exceeded SMCLs is: TDS – five wells; iron – two wells; and pH – two wells.

Within the 2007-2008 site-wide groundwater monitoring report, of the 35 wells sampled, five had 

exceeded 250 mg/L, the SMCL for sulfate (natural background wells have sulfate concentrations below 

50 mg/L), with the highest values recorded in groundwater beneath the recycle and surge ponds, the coal 

yard, and in the area where underground water pipes have leaked in the past. Plant operations are 

considered a source of elevated TDS with 15 of the 35 wells having levels exceeding the SMCL for TDS 

(500 mg/L).

 

39 Entergy counters (in its comment to the 2011 NODA, ibid) that the Class 3N landfill was issued a permit 

modification to the original October 1982 permit (No. 0220-S) on February 14, 2002. The modified permit

formalized the landfill groundwater monitoring program that had been in existence since 1991. The permit required 

monitoring of 28 parameters and that Entergy submit a statistical approach for evaluating groundwater data that 

conformed to Regulation 22.1204(a)(1). The permit, as well as the cited Regulation also allowed modification of the 

list of analytical parameters with ADEQ’s approval. Thus, upon completion of two years of quarterly sampling to 

establish background groundwater quality for the 28 permit parameters, a Statistical Evaluation Plan was developed 

(on April 28, 2004) as required by the permit, and based on the data evaluation, the Plan proposed an alternate list of 

16 analytical parameters, which ADEQ approved (May 18, 2004). In 2009, the list of analytical parameters was 

expanded to 21 in anticipation of an additional permit modification.

40 In other words, the so called ‘baseline’ would be predicated on data collected years after CCR landfill operations 

began and during which time groundwater contamination has been documented.

41 ADEQ’s comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0249.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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Entergy claims42 that: (i) contrary to the assertion in EIP (2010a) that other wells around the surge pond, 

various treatment ponds, and the plant are no longer sampled, Entergy has continued to voluntarily 

sample a smaller number (seven) of site-wide wells in addition to the ash landfill wells to monitor 

potential impacts on groundwater quality from these ponds. (ii) Site-wide monitoring for heavy metals 

ceased in 1997 with ADEQ’s concurrence because there were so few metal detections during the 1991-

1996 monitoring period; and (iii) EIP’s (2010a) interpretation of groundwater flow and water quality data 

is based on a review of 1995 water level data and historical water quality data and ignores 15 years of 

subsequent data, which includes data from many more monitoring wells that were installed to improve 

interpretations of groundwater flow and quality.43

Evaluation against Proven Damage Criteria44

Resolution: EIP (2010a) claims that the ADEQ has not ordered any “assessment monitoring,” taken any 

corrective action, undertaken any off-site monitoring, or required AP&L to undertake such monitoring 

despite evidence of groundwater contamination moving off-site and State regulatory requirements 

prohibiting off-site contamination. Moreover, AP&L has recently stopped voluntary monitoring of 26 

plant-area and surge pond groundwater monitoring wells, many of which had documented contamination, 

without objection from ADEQ. Groundwater monitoring in eight wells around the landfill continues.

 

42 Comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0227.

43 Entergy (2004) claims, for instance: (i) based on the May 2004 water level data, groundwater flow beneath the 

landfill is complex because it is influenced by river stage, mounding beneath the Surge Pond, and pumping of 

production wells. The data presented on potentiometric surface maps suggests there may be no true up-gradient

wells at the landfill. (ii) SSIs were identified for iron and manganese at well 605S. Excess turbidity was measured in 

this well during the May 2004 sampling event, suggesting excess sediment in the well may account for elevated iron 

and manganese. 

44 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 EPA 

MCLs for arsenic, cadmium, and lead.

 Onsite groundwater data exceeded EPA 

SMCLs for iron, manganese, pH, 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 I (Cases 1-32) December 2014

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According to Entergy and ADEQ,45 The 2007-08 site-wide well sampling report indicates that five of the 

35 wells have exceeded sulfate and 15 - TDS. A number of wells right on the power plant’s property line 

have shown exceedances of SMCLs (TDS, iron, and pH), but the May 2011 results show no exceedances 

for arsenic, chromium, mercury, and selenium. ADEQ has not undertaken any action to correct or 

investigate this contamination, because the State does not enforce SMCLs.

USWAG claims that this site does not qualify as a damage case.46

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

arsenic, cadmium, and lead, and the SMCLs for iron, manganese, sulfate, pH, 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 #2, 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 #2. ICF, 10/2010.

Entergy (2002): Groundwater Monitoring System Certification, Entergy Independence Plant, Newark, 

Arkansas, Class 3N Landfill, Permit No. 0200-S3N, May 2002. Accessed Online April 2012.

http://www.adeq.state.ar.us/ftproot/Pub/WebDatabases/SolidWaste/PermittedFacilities/GenDocs/17135.p

df

Entergy (2004): Semi – Annual Groundwater Monitoring Report, Entergy Class 3N Landfill, Newark, 

Arkansas, Permit No. 0200-S3N, June 29, 2004. Accessed Online April 2012.

http://www.adeq.state.ar.us/ftproot/pub/WebDatabases/SolidWaste/PermittedFacilities/GenDocs/23574.p

df

US EPA, Facility Registry System, Facility Detail Report. Accessed Online April 2012. 

http://oaspub.epa.gov/enviro/fii_query_dtl.disp_program_facility?p_registry_id=110000452705

NPDES Permit AR0037451, June 30, 2006. Accessed Online 10/20/10 (No longer accessible.) 

http://www.epa-echo.gov/cgi-bin/npdespdf.cgi?filetype=P&npdes=AR0037451

 

45 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0227; and ADEQ response to stakeholders’ 

concerns raised in the 2010 Dallas (Texas) CCR proposed rule public hearing, and followed up by EPA Region 6 (a 

September 2, 2011 email from R. Lawrence, ADEQ, to W. Kelley, EPA Region 6; forwarded to A. Livnat, 

EPA/OSWER, on October 31, 2011).

46 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.”
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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PTb03. Montville Generating Station, NRG Energy47/Montville Power LLC, Montville,48

New London County, Connecticut

Type: Impoundments, Ash Settling Ponds, Coal and Ash Storage Area. 

Background and Description: Montville Generating Station is a power plant sitting on a 50-acre site.

The Plant began service in 1919, operating as a coal plant until 1971 when it converted to oil.49 During its

52 years of operation, coal ash and slurry were placed throughout the site including into a number of 

settling ponds and disposal lagoon. The ash disposal sites have all been inactive since the plant switched 

to oil. U.S EPA Resource Conservation and Recovery Act (RCRA) investigations at the site identified 14 

Areas of Concern (AOCs), of which primarily the Coal Ash Settling Ponds and Disposal Lagoon (AOC 5) 

are related to coal ash contamination.50

The entire eastern portion of the facility is bordered by the Thames River, a few miles upstream from its 

discharge into the Long Island Sound. The main aquifer in the vicinity of Montville Generating Station is 

in about 40 feet of alluvium immediately under the Thames River. Bedrock lies at a depth of about 40 

feet. The general direction of shallow groundwater flow is to the east and discharging to the Thames 

River. Groundwater elevations in monitoring wells close to the Thames River vary only by 0.5 feet within 

a few hours, indicating limited tidal influence. The Connecticut Department of Environmental Protection 

(CTDEP) estimates that there are over 300 private wells within 2-miles of the station. 51

Impact and Damage Claims: Fly ash from the Montville Station was transported and dumped outside 

the station property in three separate sites (the Chesterfield-Oakdale, Moxley Hill, and Linda sites) in the 

Hunts Brook watershed in the Montville and Waterford communities from the mid-1960s until 1969. 

Contamination of the watershed by the fly ash (surface water with levels of iron, sulfate, and total 

dissolved solids – TDS - well above the SMCL downstream from the disposed coal ash) generated 

considerable environmental concern.52 In the 1980s, Montville began groundwater monitoring, and, in 

 

47 On December 14, 2012, NRG Energy, Inc. and GenOn Energy, Inc. completed their merger, creating the largest 

power generator in the United States. NRG now has almost 100 generation assets with a total capacity of about 

47,000 MW concentrated in three domestic regions: East, Gulf Coast and West. http://phx.corporateir.net/phoenix.zhtml?c=121544&p=irol-newsArticle_Print&ID=1767507&highlight=

48 The Station is actually located in Uncassville, about four miles ESE from Montville and six miles north of New 

London, Connecticut.

49 For the Station’s post-coal fuels (oil, gas, and biomass), see 

http://www.nrgenergy.com/pdf/factsheets/factsheet_montville.pdf and Petition (2009).

50 USEPA RCRA Corrective Action – Montville (2001); and USEPA RCRA Corrective Action – Montville (2000). 

In addition, AOCs 3, 6, 9, and 12 were also identified as areas associated with CCR disposal activities. Some AOCs 

on the site are primary related to non-CCR disposal, including fuel storage and other sources of contamination 

associated with the plants operation as an oil facility. This is probably the reason for USEPA having classified this 

case as “indeterminate” in its 2007 Damage Case Assessments report (Table 2, ‘Hunts Brook Watershed’, three 

sites).

51 According to EIP (2010a), groundwater monitoring began in 1985 with an initial network of 12 wells (NRG and 

MV series). Sampling of these wells and additional wells installed in 1999 and 2000 identified arsenic above the 

MCL in the former coal ash lagoon area and arsenic, beryllium, cadmium, copper, nickel and zinc as constituents of 

concern in the former coal ash storage area.

52 USEPA Report to Congress (1988), pp. 5-62 to 5-63.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

16

1999, conducted soil and groundwater assessments after an Equalization Basin (EB2) 53 became regulated 

as a RCRA hazardous waste unit due to corrosivity, as well as occasional presence of chromium and lead.

CTDEP has designated groundwater in the western part of the station as GA/GAA54 (currently classified 

as GA, or suitable for drinking water without treatment with a goal of improvement to GAA, which is 

intended for high volume public water supplies) while groundwater in the eastern part is designated as 

GB. EIP (2010a) notes that arsenic and beryllium concentrations exceeded the primary EPA Maximum 

Contaminant Level (MCL) at monitoring wells in both sections of the station.55 EIP (2010a) also notes 

iron, manganese, and pH above their secondary EPA MCL (SMCL) in both sections. 

In addition, soil sampling in former ash disposal areas in the western part of the Montville Station found 

multiple metals that exceed the Pollutant Mobility Criteria (PMC) for Class GA designated areas 

(groundwater designated for private and public supply without treatment) and arsenic and beryllium 

exceeding the residential and industrial/commercial Direct Exposure Criteria (DEC) for concentrations of 

these metals in soils.

EIP (2010a) mentions that because groundwater from the site discharges into the Thames River, 

comparison to CTDEP’s Surface Water Protection Criteria (SWPC) is relevant. This comparison 

identified cadmium, copper, nickel, zinc, arsenic, and beryllium as exceeding the SWPC. 

NRG claims56: (i) No significant increase in groundwater levels has been observed at the site for any 

Contaminant of Concern (CoC). (ii) Groundwater levels of CoC at the eastern/up gradient/GA portion of 

the site (i.e., closest to any potential private or municipal wells) are all below the CTDEP Groundwater 

Protection Criteria (GWPC, Connecticut’s drinking water standards). (iii) All potential private and 

municipal wells are located hydraulically up-gradient of the site and are not impacted by the site, nor is 

there a reasonable threat of impact to the wells.

Evaluation against Proven Damage Criteria57

 

53 EB2 was constructed in 1978 in an area formerly used for coal ash storage waste waters. It was a single 

membrane-lined surface impoundment that impacted groundwater.

54 Connecticut Water Quality Standard and Criteria (WQS) classifies surface water and groundwater based on 

existing water quality, anticipated water quality needs, and proximity to other nearby zones to protect water 

resources. Groundwater is classified from GAA, GA, GB, GC, through GD in decreasing expectation of 

groundwater quality. Most discharges are severely limited in GA and GAA classified areas. Classification GB 

groundwater requires treatment before consumption and allows some greater flexibility in discharge limits. 

55 In the northeastern part of the Montville Station, average concentrations (2007–2009 data) of arsenic in one 

groundwater monitoring well, NRG-MW-6, were more than 20 times the federal MCL. According to EIP (2010a), 

data indicate that concentrations of arsenic and beryllium have increased somewhat in the last ten years at this well, 

even though no new fly ash has been produced at the site in 40 years. See also EarthJustice comment to the proposed 

CCR rule docket: EPA-HQ-RCRA-2009-0640-6314.

56 NRG’s comment to the October 2011 NODA’s docket: EPA-HQ-RCRA-2011-0392-0220.

57 ICF (2010a).

Criteria Evaluation

Criterion 1: Documented exceedances of primary 

maximum contaminant levels (MCLs) or other 

health-based standards measured in groundwater 

 Onsite groundwater data exceeded the primary EPA 

MCLs for arsenic and beryllium.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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Other Considerations: Soils in the former coal ash settling pond and disposal lagoons marginally 

exceeded CT Industrial Direct Exposure Criteria guidance only for arsenic, which was determined to not 

cause a risk due to incomplete exposure pathways.

Resolution: According to EIP (2010a), soil and groundwater sampling related to Phase I and Phase II 

Environmental Site Assessments and subsequent investigations led to identification of multiple potential 

Areas of Concern (AOCs), including metals contamination attributable to coal ash disposal areas in 

various locations at the project site. This included the classification of groundwater under the western 

portion of the facility as GA/GAA and thus suitable for human consumption without treatment. An 

application to reclassify this groundwater as GB and thus suitable for industrial uses with more relaxed 

standards was made in 2000, but withdrawn based on the CTDEP’s opinion that the level of 

contamination did not merit reclassification.58

In 2000, USEPA made a provisional determination that migration of contaminated groundwater at 

Montville Station was under control and that contaminated groundwater flowing into the Thames River 

was not having a significant impact on surface water quality.59 The Thames River in the vicinity of the 

power station is saline, classified as unsuitable for shellfish harvesting, or as a fish/shellfish habitat. 

Furthermore, flow calculations indicate that, due to the high base flow in the Thames River, it is highly 

unlikely that groundwater contaminated in excess of SWPC would adversely impact the River.60

However, no surface water monitoring data was available from points upstream and downstream of the 

Montville Station in order to evaluate this claim.61

 

58 US EPA (2010).

59 US EPA, ibid.

60 USEPA RCRA Corrective Action – Montville (2000).

61 EIP (2010a).

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 SMCLs for iron, 

manganese, and pH. 

 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)

 A partial Remedial Action Plan (RAP) was designed 

to achieve compliance and reduce potential 

ecological risk from two AOC’s through excavation 

of soils that had arsenic, beryllium, and other metals 

contamination above the IC DEC.

 Disposal of coal ash outside the station boundary and 

in the Hunt’s Brook watershed was noted in the late 

1960s, which significantly degraded the surface 

water with levels of iron, sulfate, and total dissolved 

solids (TDS) well above the SMCL downstream. 

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 I (Cases 1-32) December 2014

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In 2001, both the CTDEP and USEPA made a final determination that current human exposure is under 

control. 62 One soil boring (MNV-63) in AOC 5 (at the former ash settling ponds) identified arsenic, 

beryllium, and lead at concentrations exceeding acceptable levels in soil for groundwater areas classified 

as GA/GAA.63 Accordingly, the proposed partial remedial action plan is to excavate and remove soil in 

this area. According to EIP (2010a), the remedial goals of the proposed partial Remediation Action Plan 

(RAP) are to achieve compliance with GA PMC for metals and reduce potential ecological risk in both 

AOC5 and AOC9. According to USEPA,64 the facility is working towards a RCRA Final Remedy. 

RCRA Closure/Post-Closure work continues on site. NRG has completed an Ecological Risk Assessment, 

which has been approved by both the USEPA and the CTDEP.

USWAG claims that this case does not qualify as a damage case.65

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

arsenic and beryllium and the SMCL for iron, manganese, and pH have been found on site with no 

indication of migration. Arsenic in soil potentially related to CCRs was determined to not cause a risk. 

There are no administrative rulings or court decisions associated with the site that found specific damage 

related to the CCRs.>

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 #3, Environmental Integrity Project, Earthjustice and Sierra Club, August 26, 

2010.

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

 

62 US EPA, Waste Site Cleanup & Reuse in New England, ibid. Note that a positive “Current Human Exposure 

under Control” Environmental Indicator (EI) determination indicates that there are no “unacceptable” human 

exposures to “contamination” that can be reasonably expected under current land- and groundwater-use conditions. 

The EI reflects near-term objectives that do not consider potential future land- and groundwater-use conditions or 

ecological receptors. This long-term mission requires that Final remedies address these issues. The EI identified 

groundwater, surface soil (< 2 ft) and subsurface soil (> 2 ft) as “contaminated” above appropriately protective riskbased “levels” from releases subject to RCRA Corrective Action. Potential Human Receptors (under current 

conditions) were identified as workers, construction workers, and trespassers – for surface soil; and construction 

workers – for subsurface soil. However, “given the contaminant concentration and locations, along with current site 

use and site development, viable pathways do not appear to exist for human exposure to contaminants detected in 

various media on-site”.

63 The certification of clean closure of the former ash settling ponds in AOC 5 was approved by the CTDEP in 2001 

(EPA-HQ-RCRA-2011-0392-0220).

64 US EPA, Waste Site Cleanup & Reuse in New England, RCRA Corrective Action, Montville Station, August 23, 

2010.

65 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., Thames River) to 

support any allegation of ecological damage. The power plant converted from coal to oil in 1971. CCRs have not 

been generated or disposed at the Site since 1971. The only regulatory enforcement action at this site was related to 

a former (now closed) RCRA hazardous waste impoundment that did not contain any CCRs. There was a USEPA 

determination that surface water quality is not significantly impacted by groundwater from the Site. In addition, the 

USEPA determined that human exposure via the groundwater pathway is not a concern.”
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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

Appendix C, Case #3. ICF, 10/2010.

US EPA (2010): Waste Site Cleanup & Reuse in New England, RCRA Corrective Action, Montville 

Station, August 23, 2010. Accessed Online October 2010. 

http://yosemite.epa.gov/r1/npl_pad.nsf/701b6886f189ceae85256bd20014e93d/41776e12ca0d77fe85256c

2c00726568!OpenDocument

USEPA RCRA Corrective Action – Montville (2001): Documentation of Environmental Indicator 

Determination, RCRA Corrective Action, Current Human Exposure under Control, Final May 16, 2001. 

Accessed Online May 2012.

http://www.epa.gov/ne/cleanup/rcra/780.pdf

USEPA RCRA Corrective Action – Montville (2000): Documentation of Environmental Indicator 

Determination, RCRA Corrective Action, Migration of Contaminated Groundwater under Control, Draft 

September 29, 2000. Accessed Online April 2012.

http://www.epa.gov/ne/cleanup/rcra/781.pdf

USEPA, Report to Congress (1988): Wastes from the Combustion of Coal by Electric Utility Plants, 

EPA/530-SW-88-002 (1988). Accessed Online May 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/coal-rtc.pdf

Petition (2009): Petition of Montville Power LLC for a declaratory ruling to approve the retrofit and 

operation of a 40 MW biomass-fueled generation unit at Montville Station in Uncasville, Connecticut, 

submitted to State of Connecticut Siting Council, June 22, 2009. Accessed Online December 2012.

http://www.ct.gov/csc/lib/csc/pendingproceeds/petition_907/petition_no__907.pdf

PTb04. Indian River Power Plant, NRG Energy (Formerly: Delmarva Power), Burton 

Island, Millsboro, Sussex County, Delaware

Type: Wet Disposal Area (Burton Island) and Landfills (Mainland).

Background and Description: Between 1957 and 1980, coal ash from the Indian River Power Plant (a 

four-generation unit, 784-MW facility)66 was sluiced into the eastern two-thirds of the Burton Island 

 

66 Units 1 and 2 are 80 MW of capacity each and were placed in service in 1957 and 1959, respectively. Unit 3 is 

155 MW of capacity and was placed in service in 1970, and Unit 4 is 410 MW of capacity and was placed in service 

in 1980. Units 1, 2 and 3 are fueled with eastern bituminous coal, while Unit 4 is fueled with low-sulfur compliance 

coal. Pursuant to a consent order 

(http://www.dnrec.delaware.gov/whs/awm/SiteCollectionDocuments/DNREC%20Portal/NRG%20Consent%20Decr

ee.pdf) dated September 25, 2007, between NRG and the Delaware Department of Natural Resources and 

Environmental Control (DNREC), NRG agreed to mothball Unit 2 by May 1, 2010, and Unit 1 by May 1, 2011. In 

the absence of the appropriate control technology installed at this facility, the consent order bans Units 3 and 4 

(totaling approximately 565 MW) from operating beyond December 31, 2011. On February 3, 2010, NRG together 

with DNREC announced a proposed plan to retire the 155 MW Unit 3 by December 31, 2013. The plan extends the 

operable period of the plant by two years beyond the December 31, 2011 date and avoids the incremental cost of 

control technology. The 410 MW Unit 4 is not affected by this proposal, and in 2009, the Company began 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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disposal area, which was originally a tidal marsh.67 Burton Island is located approximately 3 miles east of 

Millsboro and 9 miles west of the Atlantic Ocean. It extends east from the Indian River Generating 

Station, and consists of a peninsula formed between the Indian River to the north and Island Creek to the 

south. Indian River Bay is a shallow estuarine system with freshwater inflow and a direct connection to 

the ocean through the Indian River Inlet, located within Delaware Seashore State Park. Both the Indian 

River and Island Creek are tidally influenced. However, much of the flow in Island Creek comes directly 

from the cooling water discharge of the generating station.

The unlined disposal area was surrounded by berms built using ash and dredge spoils. Approximately 144 

acres were covered with coal ash to a 15-foot thickness before a new mainland landfill was built. This 

resulted in the conversion of tidal marshes and flats to upland, and the native vegetation has been largely 

supplanted by invasive plants.68

Phase I unlined landfill was built in 1980 on 17.6 acres of the mainland; at the end of its operation, in 

2008, it attained a height of 100 feet.69 The currently active, Phase II landfill disposal site (Permit 

Application approved September 4, 2008) 70 is underlain by the Pleistocene Columbia sand deposits, 

which range in thickness from less than 50 to over 125 feet in southern Delaware. They comprise 

moderately-well to poorly-sorted sand with minor amounts of silt and gravel. Both the ash and underlying 

coarse grained sediments of the Columbia aquifer form a single unconfined aquifer. The base of this 

aquifer is marked by Miocene Age green silty-clay. The top of the clay aquitard occurs below -75 ft 

AMSL in the vicinity of Burton Island. Ash occurs below the water table in some areas and is saturated. 

As the thickness of ash thins from west to east, so does the zone of saturated ash.71

Impact and Damage Claims: EIP (2010) indicates that contamination of groundwater, sediments, and 

surface water in the Indian River and Island Creek occurred by erosion of an inactive coal ash landfill on 

Burton Island. Data analysis of samples72 identified a total of nine constituents of potential concern 

(COPC) for human and ecological impacts from the sediment contamination based on potential for 

bioaccumulation and on whether concentrations were above background levels. Levels of arsenic, 

chromium, and thallium in onsite groundwater exceeded their primary Maximum Contaminant Levels 

(MCLs). The report also notes that aluminum and iron were found in offsite surface water above Ambient 

 

construction to install selective catalytic reduction systems, scrubbers and fabric filters on this unit. These controls 

were scheduled to be operational at the end of 2011: WGMD News (2010) and

http://www.sourcewatch.org/index.php/Indian_River_Power_Station

67 Burton Island was owned by Delmarva Power and Light Company (DP&L), which used Burton Island to dispose 

of coal ash waste from DP&L’s coal-fired Indian River Generating Station’s (IRGS) between 1957 and 1979. 

During this period, DP&L deposited an estimated 200 million cubic yards of coal ash on the Island. In 1979 DP&L 

began disposing the coal ash into an on-site industrial landfill with state approval. DNREC was not created until 

1970 and there was no authority to regulate solid waste until 1974. 

68 Burton Island Ash Disposal Area (2009).

69 The Phase I coal ash landfill (Permit No. SW-07/01, issued January 24, 2007) is located approximately one-half 

mile southwest of the power station. The Phase I coal ash landfill facility includes a sedimentation basin for 

collecting surface water run-off from the landfill area and haul road used for transporting ash from the power station 

to the landfill

70 The Phase II landfill lies immediately west of, and contiguous to, the Phase I landfill and will consist of two new 

cells: Cell 1 (12.7 acres) and Cell 2 (15.7 acres). The two cells are estimated to provide approximately 2 million 

cubic yards (CY) of disposal volume. Based on an estimated compacted density of 1.12 tons per CY, this volume 

could provide disposal for approximately 2.2 million tons of ash. The Phase II landfill began operations September 

17, 2010: Delaware DENR (2008).

71 Burton Island OU2 RI (2011) and references therein.

72 Shaw Environmental (2008).
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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Water Quality Criteria (AWQC). Arsenic, aluminum, barium, and iron were also reported to exceed 

DNREC Uniform Risk-Based Standards (URS) in surface water and sediment samples. Average 

concentrations of arsenic exceeded the URS in all media (by a factor of 12.3 times in the soil/ash; by a 

factor of 9 to 900 times in groundwater; by a factor of 3.3 times in shoreline sediments; and somewhat 

above the URS in surface water samples).73

NRG Energy claims74 that based on the 2008 Facility Evaluation (FE),75 (i) elevated concentrations of 

multiple constituents in groundwater are not entirely related to the facility, because arsenic and chromium 

show values that exceed USEPA’s MCL in groundwater in background monitoring well; aluminum, 

arsenic, barium, chromium, iron, manganese, and vanadium exceed DNREC’s URS in groundwater in 

background well; and aluminum and iron are the two major components of soil/sediment. NRG attributes 

the presence of all these constituents at elevated concentrations in groundwater and the surface to re‐

suspension of soil and sediment during sampling. 

Furthermore, NRG Energy claims that according to the Remedial Investigation (RI) for Operable Unit 

(OU) 2,76 the site is surrounded by brackish water bodies, and it has been determined that there is no 

pathway for on‐site groundwater to migrate to off‐site residential wells or other drinking water sources. 

Thus, there is no potential for human health concerns off‐site from groundwater. Based on the results of 

extensive multi‐media sampling and risk assessment,77 DNREC issued No Further Action remedy for off‐

site sediment and off‐site surface water.78

The RI of OU2 also demonstrated: (i) no ecological hazard from exposure to sediment through food web 

interactions; and possible, but not probable potential for adverse effects on benthic invertebrates due to 

arsenic and barium in sediment; (ii) no ecological hazard from exposure to surface water through food 

web interactions; the likelihood of adverse effects from exposure to arsenic and barium in surface water is 

minimal; and that (iii) evaluation of the mass loading for arsenic to Island Creek and Indian River from 

Burton Island via stormwater runoff confirms that the contribution of landfill material to the surrounding 

surface waters has been significantly reduced by the shoreline stabilization project. This results in a 

condition of no significant risk from exposure to surface water and sediment due to potential overland 

flow contribution.

Finally, NRG energy claims that whereas arsenic is the only constituent in surface soil and sediment that 

poses potential health risk to human receptors (i.e., trespassing fishermen), under more realistic exposure 

parameters, the estimated carcinogenic risks and non-carcinogenic hazards associated with exposure to 

surface material at OU2 are less than the recommended risk/hazard levels specified by the U.S. 

Environmental Protection Agency (USEPA) and DNREC.

 

73 According to comments to the docket by Citizens for Cleaner Power (CCP): EPA-HQ-RCRA-2009-0640-0378 

and EPA-HQ-RCRA-2009-0640-0358, the Burton Island disposal site has up to 1,470 μg/L of arsenic in 

groundwater, and the arsenic plume moves to the N/NE, towards Island Creek. Well 326C, located on the bank of 

Island Creek adjacent to the landfill (screened from 30' to 40'), first detected arsenic and selenium exceedances 

(14ppb and 56ppb, respectively) on April 13, 2009. Well 103B, located closely to the Phase I landfill (screened 

between 38' and 48') and Well 103C (screened between 22' and 32') have detected arsenic for a number of years, 

with maximum readings of 20- and 140ppb, respectively. Water sampled on the same date (October 21, 2009) also 

showed selenium values up to 67ppb and 71ppb, respectively. 

74 NRG’s comment to the October 2011 NODA’s docket: EPA-HQ-RCRA-2009-0640-0220.

75 Shaw Environmental (2008).

76 Burton Island OU2 RI (2011).

77 Shaw Environmental (2008).

78 DNREC (2008). 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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Citizens for Cleaner Power (CCP) claims that Indian River arsenic data in fish and shellfish for 1998-08 

exceed 1x10-5 human health risk estimate. The OU2 RI79 shows that surface soil samples from OU2 

exhibit concentrations of several metals (arsenic, barium, mercury, selenium, and thallium) that may have 

the potential to affect the site’s ecosystem. The results of the terrestrial food web model showed that the 

calculated ecological hazard quotients (EHQs) for several of the feeding guilds were greater than one, 

indicating the potential for ecological hazard due to exposures to COPCs in surface soil at OU2. 

However, if food web models were utilized to assess ecological communities and populations instead of 

individuals, then the calculated hazards would be less than the de minimus hazard levels and no food web 

impacts to terrestrial populations would be expected.

Evaluation against Proven Damage Criteria80

Resolution: Sediments, surface water and groundwater: In 2005, after erosion of the ash was observed 

by DNREC, a voluntary cleanup program (VCP) was agreed upon between NRG Energy and DNREC. 

The site was divided into 3 Operable Units (OUs): OU 1 (shoreline, intertidal zone, vicinity); OU 2 

(landfill, land areas, berms); OU 3 (subtidal sediments, waters seaward of berms). Upon review of the 

Facility Evaluation (FE) report, DNREC found that for OUs 1 and 3, the FE was sufficient to constitute 

an RI, allowing a saving of a major step in the remediation process and of at least a year’s worth of 

 

79 Burton Island OU2 RI (2011).

80 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, chromium, and thallium.

 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)

 Aluminum, arsenic, barium, and iron above DNREC URS in 

surface water samples. 

 Arsenic and barium were found above DNREC URS in 

shoreline and offshore sediment samples.

 A risk assessment is ongoing to determine whether detected 

contaminants pose a potential risk to human health or the 

environment. 

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

 Assessment and remediation performed under the DNREC 

Voluntary Cleanup Program (VCP).
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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erosion. An initial human health risk assessment estimated carcinogenic risk for adults to marginally 

exceed DNREC‘s regulatory guidance, and a screening level ecological risk assessment suggested that 

ecological risk to riparian and aquatic communities from OU1 and OU3 would no longer be a concern if 

landfill erosion is controlled.81

A Proposed Plan was issued calling for construction of the erosion controls as the remedy for OU1 and 

No Further Action (based on low human health risks) for OU3. Following a public hearing, and in spite of 

substantial controversy, a Secretary’s Order was issued approving the Proposed Plan as written.82 The 

Final Plan was signed on August 1, 2008, and the OU1 remediation was conducted during the winter and 

spring of 2008-2009.83,DNERC concluded a Feasibility Study for OU2 in October 2012,

84 and on October 

9, 2013, following a public hearing, approved the final plan of remedial action for OU2.85

In October 2008, DNREC approved the new, Phase II landfill (28-acres, 2 million cubic yards capacity) 

on the west flank of the Phase I landfill.86 The landfill has a liner and leachate collection system. Phase II 

has been operational since 2010.

Fugitive Dust: A citizens’ group estimated that the Phase I landfill mound loses 1.51 tons/year from wind 

erosion.87 Current permits and state regulations are ineffective other than to record reported dusting 

complaints. Concerns that a cancer cluster downwind from the utility is related to emissions and fugitive 

dust were addressed by a DNREC Air Surveillance Branch short-term study. The study’s results were 

consistent with strong regional source influence, and did not support a strong influence from local 

sources.88

The Delaware Division of Public Health (DPH) issued a report (July 17, 2007) on a cancer cluster 

investigation in the Indian River area.89 While the study confirmed the existence of a statistical cancer 

 

81 Shaw Environmental (2008).

82 DNREC (2008).

83 According to Burton Island Ash Disposal Area (2009), the work comprised regarding the steeper slopes, 

protecting the newly constructed slopes by a rip-rap layer, and protecting the exposed berms with erosion-control 

matting and seeding. The work was scheduled for completion by May, 2009.

84 Shaw Environmental (2012). The study concluded that Alternative S-2, Targeted Soil Cover with Land Use 

Controls is the preferred remedial alternative for OU2. The Targeted Soil Cover with Land Use Controls alternative 

includes clearing discrete areas of vegetation, grading and placing approximately 12” thick soil cover over discrete 

areas of currently exposed ash material in soil and unstable slopes in OU2 (approximately 2.3 acres, see Final Plan

of Remedial Action, Fig. 3, for targeted soil cover areas), performing perimeter patrols, maintaining ‘no trespassing 

private property’ signs, establishing a Uniform Environmental Covenant (UEC) to limit future land use, and longterm monitoring. (UEC is a standardized form of a land use restriction that is recorded on the deed and runs with the 

land. Provisions governing UECs are found in the Uniform Environmental Covenants Act, UECA).

85 Secretary’s Order – Approval of Final Plan of Remedial Action for Burton Island Ash Disposal area (Operable 

Unit 2) near Millsboro, Sussex County (http://www.dnrec.delaware.gov/dwhs/Info/Pages/NRGIndianRiver.aspx).

The Order adopted the findings of the FS, and was immediately followed by A Final Plan of Remedial Action

(October 10, 2013).

86 In the public hearing leading to the approval, citizens expressed a strong opposition, contending that the new 

landfill is going to be located near a flood zone; within an ecologically sensitive area subject to the Coastal Zone 

Act; and only 3-4 feet above groundwater (rather than 5 feet, as required by the State’s standard). 

http://www.thecoastalpoint.com/content/residents_say_no_nrg_permit_landfill (No longer accessible).

87 Docket comment EPA-HQ-RCRA-2009-0640-0358.

88

 Delaware Air Quality Management (2008). The study was conducted between December 2, 2007and March 7, 

2008 (26 scheduled sampling days, using portable battery-operated monitors), to determine PM2.5 concentrations in 

the Indian River area. 

89 http://www.dhss.delaware.gov/dhss/dph/dpc/files/irrpt071707.pdf
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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cluster, it did not identify any increased rate of unusual cancers or cancer incidence among young people. 

A subsequent study90 established the probability of other risk factors as the morbidity cause.

Atmospheric dispersion modeling performed by the OU2 RI to estimate ambient particulate matter (PM) 

concentrations in the local area due to potential wind erosion from OU2 indicates that the National 

Ambient Air Quality Standards (NAAQS) are not exceeded under current conditions at OU2.91

ICF (2010) Rationale: Potential damage. <Groundwater exceedances of primary EPA MCLs have 

been found on site. While exceedances of AWQC and URS criteria have been documented in surface 

water and sediment, the risk assessment for OU 2 (landfill and berms) is still underway to determine if 

there is a potential risk from the detected contamination. A final remedial action plan was prepared and 

approved under the DNREC VCP, not under an administrative ruling or court decision.>

Postscript: The OU2 RI demonstrated human health and ecological risk associated with the sediments at 

the Burton Island. The level of risk is decreased once less conservative assumptions are deployed. 

However, in the absence of an actual ecologic and biotoxicity study, the applicability of the mitigated 

exposure assumptions cannot be reliably assessed.

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. 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 #1. ICF, 10/2010, Appendix B.

Burton Island Ash Disposal Area (2009): DNREC SIRB Activities, July 2005 to April 2009, Presentation 

by Greg Decowsky DNREC. Accessed Online November 2012. 

http://www.awm.delaware.gov/SIRB/Documents/Burton%20I%20overview%20for%20public%2009042

8.pdf

Industrial Site Information: NRG Indian River Power Plant. Delaware Dept. of Natural Resources and 

Environmental Control, Division of Air & Waste Management, Industrial Site Information. Accessed 

Online November, 2012.

http://www.awm.delaware.gov/Info/Pages/NRGIndianRiver.aspx

NRG Indian River Power Plant - 29416 Power Plant Rd, Millsboro, Delaware Dept. of Natural 

Resources and Environmental Control, Facility Navigator. Accessed Online November, 2012. 

http://www.nav.dnrec.delaware.gov/DEN3/Detail/FacilityDetail.aspx?id=10000019

DNREC (2008): Secretary's Order No. 2008-A-0032 – Approval of Final Plan of Remedial Action for 

Burton Island Ash Disposal Area (Operable Units 1 & 3) (July 30, 2008). Accessed Online November, 

2012.

 

90 Delaware Health and Social Services (2007), and Delaware Health and Social Services (2009).

91 Burton Island OU2 RI (2011).
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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http://www.dnrec.delaware.gov/Info/Documents/Sec.%20Order%20No.%202008-A0032_Burton%20Island%20Proposed%20Plan%20of%20Remedial%20Action%20units%201-3_.pdf

Burton Island OU2 RI (2011): Remedial Investigation Report, Indian River Generating Station Operable 

Unit No. 2, Burton Island Historical Ash Disposal Area, Millsboro, Delaware, Site Number DE-1399.

Prepared for Indian River Power, LLC (an NRG Energy Company), by Shaw Environmental Inc., 

February 2011. Accessed Online November, 2012.

http://www.dnrec.delaware.gov/whs/awm/Info/Documents/NRG%20Burton%20Island%20RI%20Report

_for%20DNREC_022811.pdf

Shaw Environmental (2008): Final Facility Evaluation Report: Indian River Generating Station Burton 

Island Old Ash Landfill. Shaw Environmental on behalf of Indian River Power, LLC, March 2008. 

Industrial Site Information: NRG Indian River Power Plant. Accessed Online March, 2012.

http://www.dnrec.delaware.gov/whs/awm/Info/Pages/NRGIndianRiver.aspx

Delaware Health and Social Services (2007): Cancer Cluster Investigation, Indian River Area, Delaware 

Health and Social Services Division of Public Health, July, 2007. Accessed Online November, 2012.

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

Delaware Health and Social Services (2009): Lung Cancer in Sussex County, Delaware: Findings from 

the Indian River Community-Level Survey (IRCLS); Delaware Health and Social Services, Division of 

Public Health, November 2009. Accessed Online November, 2012.

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

Delaware Air Quality Management (2008): Delaware Air Quality Management PM2.5 Indian River 

MiniVol Study Final Report. Betsy Frey, Environmental Scientist, Air Surveillance Branch, Air Quality 

Management Section, Division of Air and Waste Management, Delaware Department of Natural 

Resources and Environmental Control. May 21, 2008. Accessed Online November, 2012.

Delaware Air Quality Management PM2.5 Indian River MiniVol Study

Delaware DENR (2008): Phase II Industrial Landfill, Permit for the Construction and Operation of Indian 

River Generating Station Phase II Landfill. Delaware DENR, October 16, 2008. Accessed Online August 

2014.

http://www.dnrec.delaware.gov/dwhs/Info/Pages/NRGIndianRiver.aspx

WGMD News (2010): Indian River Power Plant, NRG Energy. WGMD News, July 15, 2010. Accessed 

Online August 2014.

http://wp.wgmd.com/?p=6885

Shaw Environmental (2012): Feasibility Study, Indian River Generating Station Operable Unit No. 2, 

Burton Island Historical Ash Disposal Area, Millsboro, Delaware, Site Number DE-1399, Shaw

Environmental, Inc., November 2012. Accessed Online August 2014. Under: Final FS – OU2 – Text, and 

Appendix A-E: http://www.dnrec.delaware.gov/dwhs/Info/Pages/NRGIndianRiver.aspx
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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PTb05. Big Bend Station, Tampa Electric Company (TECO), Apollo Beach, Hillsborough 

County, Florida

Type: Landfill and Surface Impoundments; Gypsum Storage Area.

Background and Description: The first generating unit of the 1,565 MW Big Bend Station was built 

in 196892 on two dredge-filled peninsulas on the eastern shore of Tampa Bay. The site contains several 

CCR disposal areas including one economizer fly ash pond and two bottom ash ponds, a wastewater 

recycling pond, a flue gas desulfurization (FGD) gypsum by-product pond, a bottom ash dry storage unit, 

and a waste disposal management unit.93 With the exception of the FGD gypsum storage area, all CCR 

management units at the site presently have liner systems.

94 All of the units, including the FGD gypsum 

 

92 This facility was permitted under an Industrial Wastewater Permit. In 1979, another unit was added and permitted 

under the Florida Power Plant Siting Act (PPSA). Site Certification PA 79-12 and Industrial Wastewater Permit No. 

FLA017047. According to TECO Energy, Big Bend Power Station’s web site 

(http://www.tecoenergy.com/news/powerstation/bigbend/), the first unit began service in 1970; the second and third 

generating units were added in 1973 and 1976, respectively; and Unit Four was added in 1985. The Tampa Bay 

Seawater Desalination Plant, the largest Reverse Osmosis Desalination facility in the western hemisphere (95,000 

m3/day or 25 MGD), co-located at Tampa Electric’s Big Bend station, was completed in 2002 (Hillsborough, 2002) 

and came online in March 2003. The intake and discharge of the desalination plant are connected directly to the 

cooling water discharge outfalls of the Tampa Electric Big Bend Power Station (Desalination: A National 

Perspective, 2008). The facility is designed to withdraw up to 44 MGD from power plant cooling water yielding up 

to 25 MGD of potable water along with about 19 MGD of concentrate discharged back into the cooling water 

conduits. The withdrawal is a small fraction of the 1.4 billion gallons of cooling water used by the power plant, and 

the concentrate is returned to Big Bend Power Station’s cooling water stream where it is blended and typically 

diluted about 70:1 with cooling water before discharge. The salinity levels after dilution are approximately 1.0 to 1.5 

percent higher than water in Tampa Bay, which is within normal seasonal fluctuations (Yates et al., 2011; De la 

Parte (2007).

93 According to Tampa Electric Company (2009, Attachment 1), there are two bottom ash ponds (North and South, 

5.7 and 6.0 acres, respectively; both commissioned in 1984 and expanded in 2001), three economizer ash ponds 

(North, South, both receiving fly ash/pyrite, and Long-Term Flyash, receiving de-minimis amounts of CCR; 5.5, 7.4, 

and 12.0 acres, respectively; all commissioned in 1984 and expanded in 2001), and three settling-recycle ponds 

(Settling Pond, North Recycle Pond and South Recycle Pond; 1.0, 2.6, and 8.6 acres, respectively; all receiving 

FGD/ash residuals; all commissioned in 2009). Liner was installed in the two bottom ash ponds in 2001; (originally 

installed before commissioning?) liner was repaired in the North and South economizer ponds in 2002. The three 

settling-recycle ponds have had liner installed from the outset. The South Economizer Pond has been closed and is 

no longer receiving CCR. See Dewberry and Davis (2011, Fig. 2.1b) for an air-photo of the waste Units, and 

Appendix A, Document 6 for the Site’s layout. According to Dewberry and Davis (ibid), the North and South 

Bottom Ash Ponds were designed and operated to receive sluiced bottom ash from the plant. The water decanted 

from the ponds is recycled and pumped back into the plant. Periodically one of the ponds is taken offline, dewatered 

and all of the ash material is mechanically excavated for reuse.

The North and South Economizer Ponds were designed and operated to receive sluiced fly ash and pyrites 

for permanent disposal. The water decanted from the ponds is recycled and pumped back into the plant.

94 According to Tampa Electric Co. (ibid), the two bottom ash ponds and the three economizer ponds are lined with

compacted structural fill and 60 mil HDPE liners; and the three settling/recycle ponds – with compacted structural 

fill and a composite liner system. However, according to Dewberry and Davis (ibid, Appendix B, Documents 7-10), 

the two Bottom Ash Ponds and the South and North Economizer Ponds are lined with an 80 mil HDPE liner. 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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area, are zero discharge facilities. More than 90 percent of the FGD wastewater is recycled and less than 

10 percent is treated and discharged through a permitted outfall.95

Bottom ash produced at Plant Big Bend is marketed to cement companies and fly ash is managed in 

partnership with Separation Technologies, Inc. The fly ash is pneumatically piped directly from the ash 

collection systems to a storage dome, treated, and stored in two silos. One of the silos receives the 

majority of the ash, which due to its high quality is marketed directly to the mixed concrete products 

industry. The second silo receives the remaining, higher carbon fraction, which is still valuable as cement 

feedstock or a solid fuel. 

The majority of the FGD gypsum material generated at the plant is sold to National Gypsum as raw 

material for wallboard production. The slag from Units 1-3 is sluiced directly to settling bins from these 

units, then dewatered and shipped to the customer.

Inter-tidal canals that cross the Big Bend site are considered to be groundwater discharge boundaries 

where the shallow groundwater is discharged to the surface water of Tampa Bay.96 The uppermost 

groundwater occurs in unconsolidated sediments consisting mostly of shell- and silty-sands. At the site, 

there is a combination of natural landforms and heterogeneous dredge fill units consisting of shell hash, 

sand, clayey-sand, sandy-clay, and clay. The plant is located just west (and down-gradient) of the 

westernmost boundary of significant phosphate mineralization in the underlying Pliocene Bone Valley 

Formation and/or the Miocene Hawthorn Group.97

Impact and Damage Claims: Groundwater: EarthJustice98 and EIP (2010) indicate a number of 

instances of groundwater contamination including onsite (coal ash Disposal Area/DA-2) primary EPA 

Maximum Contaminant Level (MCL) exceedances of thallium and arsenic, as well as a thallium primary 

EPA MCL exceedance on a property offsite, which was subsequently purchased by TECO. The report 

also notes that manganese, sulfate, and chloride were found above EPA SMCLs at this same offsite 

location. A number of other constituents (chloride, sodium, gross alpha,99 and TDS) were found in the 

groundwater Zone of Discharge (ZOD) above EPA SMCLs or Florida Department of Environmental 

Protection (FDEP) Groundwater Clean-up Target Levels (CTLs). 

Surface water: Surface water samples collected in February 2000 from ditches on-site, from a CCR 

seepage location, from a process water pond, and from a recycled wastewater pond indicated exceedances 

of state surface water standards for iron and boron above guidance criteria100 (FDEP, 2001). 

 

95 Cordiano (2011). The impoundment has been issued in 2005 a National Pollutant Discharge Elimination Program 

(NPDES) Permit No. FL0000817.

96 EIP (2010) and references therein.

97 Effects of Phosphate Mineralization (1977), Fig. 1; Altschuler et al., (1964). 

98 EPA-HQ-RCRA-2006-0796-0446. MCL exceedances of arsenic are at x11 the MCL, and of thallium - at x8 the 

MCL. SMCL exceedances in DA-2 include boron at over x700 the Florida guidance concentration, manganese at 

x240, sulfate at x128, aluminum at x25, molybdenum at above the state guidance concentration, chloride at x40, 

fluoride at x4, and TDS at x46. Contaminants measured in groundwater at the Gypsum Storage Area exceeded the 

following SMCLs: boron - almost x40, iron - by x66, manganese - by x11, sulfate - by x4, and TDS - by x5.

99 The gross alpha values are possibly associated with leaching from the phosphate of the Bone Valley Formation 

and/or the Hawthorn Group. 

100 EIP (2010) and references therein.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

28

The utilities responded101 that EIP’s (2010) allegations fail to account for Florida’s regulatory code:102 (i) 

All of the alleged exceedances were from temporary micro-wells directly within or adjacent to the waste 

units and within the Zone of Discharge (ZOD) authorized by Florida’s regulations, within which 

numerical primary and secondary DWSs do not apply; (ii) Under Florida regulations, SMCLs are not 

applicable to existing industrial facilities discharging to groundwater in the state, and (iii) none of the 

contaminants in the gypsum storage Area is a primary DW constituent. FDEP supports the utility’s 

arguments103 about the exceedances being limited to the ZOD, where primary and secondary groundwater 

standards do not apply. FDEP also indicates that one former disposal unit that has caused stressed 

vegetation off-site was ordered closed by FDEP. The facility has been in compliance with the 2001 CO 

and is implementing appropriate changes as needed to their on-site management of CCRs. As to the cited 

exceedances of guidance concentrations for surface water at the site, these levels were detected in grab 

samples in a ditch adjacent to DA-2 which was later voluntarily capped and closed by TECO, eliminating 

the potential for any future impacts. Finally, no impacts to offsite drinking water or surface water 

resources have ever occurred. According to USWAG,104 this case does not meet the criteria for a damage 

case. 

Evaluation against Proven Damage Criteria105

 

101 EPA-HQ-RCRA-2006-0796-0460 and EPA-HQ-RCRA-2009-0640-10498. According to FCG, The exceedances 

noted in a 2007 EarthJustice report were detected during a contamination assessment, performed in 2001/2002 to 

determine the potential for offsite groundwater impacts, the findings of which were utilized in a 2003 FDEP report 

(Preliminary Evaluation of Analytical Data on CCPs).

102 Namely, Florida Statutes Chapter 403 and the groundwater protection standards provided in Chapter 62-520 

Florida Administrative Code.

103 FDEP’s comment to the proposed CCR docket: EPA-HQ-RCRA-2009-0640-6846, FDEP’s comment to the 

October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0285, and Florida’s feedback in response to EPA’s 

Region 4 inquiry following stakeholders’ complaints in the 2010 Louisville Public Hearing (a January 3, 2012 email 

from L. DiGaetano to A. Livnat, EPA/OSWER).

104 USWAG’s comment to the 2011 NODA (EPA-HQ-RCRA-2011-0392-0211): “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. No data, studies, or specific damage has been documented to 

support allegations of off‐site impact to surface water.”

In addition, in their response to EIP (2010), USWAG claims that prominent intertidal canals’ position across Big 

Bend Station limits potential discharge to human receptors; and claims of thallium offsite exceedance could not be 

verified. Claimed results from preliminary report could not be verified despite access to all site related groundwater 

data.

105 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 and thallium, and exceed FDEP 

Groundwater CTLs or EPA SMCLs for a number of 

other constituents.

 No offsite groundwater data 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)

 Discharge from recycled wastewater pond reportedly 

exceeded unspecified effluent limits for TSS and 

flow. 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

29

Resolution: FDEP issued a Consent Order in April 2001 for repair/replacement of liner systems on 

waste management units. The CO required assessment and remedial measures but without explicit finding 

of specific damage. In January 2007, FDEP approved Remedial Action Plan that will result in lining of 

the Gypsum Management area, and a groundwater monitoring plan of about 45 monitoring wells.

106

 

TECO implemented changes in its CCR waste and dredge spoil disposal practices which allowed the 

company to close the unlined DA-2 Disposal Area in 2005, and has completed its permitted closure and 

capping. With the planned improvements to the gypsum management facilities, all of the impoundments 

and landfills at the plant will have been lined.107 TECO is also implementing an extensive groundwater 

monitoring plan. According to the utility, previous monitoring in these wells has demonstrated 

improvements in onsite groundwater quality as a result of the Remedial Actions which have already been 

implemented.108

ICF (2010) Rationale: Potential Damage. <Onsite groundwater data exceeded primary EPA MCLs for 

arsenic and thallium. While discharge and surface water samples reportedly exceed effluent limits and 

state guidelines, respectively, there is no scientific study available that explicitly documents evidence of 

damage to human health or the environment. A Consent Order was issued for repair/replacement of the 

liner systems on the waste management units; however without 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 #4. 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 #4. ICF, 10/2010.

Florida DEP Site documents for Tampa Electric Company (TEC) Big Bend Site. Accessed Online July 

2012. http://appprod.dep.state.fl.us/WWW_WACS/REPORTS/SW_Facility_Docs.asp?wacsid=95345

 

106 TECO’s comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0460.

107 According to Cordiano (2011), the final project in this program is the Gypsum Storage Area and Conveyor 

Improvement Project, presently in the preliminary engineering stage. Construction is scheduled for 2013-2015 after 

approval of the permits.

108 Florida Electric Power Coordinating Group, Inc. (FCG) comment to the docket: EPA-HQ-RCRA-2009-0640-

10498.

 Surface water samples reportedly exceeded 

unspecified state surface water standards or iron and 

boron. 

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

 FDEP issued a Consent Order (OGC File No. 1275) 

in April 2001 because of identified contamination. 

The Consent Order required assessment and remedial 

measures but without explicit finding of specific 

damage. Under the Consent Order TECO developed a 

Remedial Action Plan and groundwater monitoring 

plan approved by FDEP January 2007.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

30

Tampa Electric Company (2009): Tampa Electric Company (TEC) - Big Bend Power Plant Response to 

Request for Information under CERCLA Section 104(e), March 25, 2009. Accessed Online January 2014.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/tampa.pdf

Dewberry & Davis (2011): Coal Combustion Residue Impoundment, Round 9 – Final Dam Assessment 

Report, Big Bend Power Station Ash Management Units, Tampa Electric Company, Hillsborough 

County, Florida. Dewberry & Davis, LLC, Fairfax, Virginia, December 2011. Accessed Online January 

2014.

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

Florida Department of Environmental Protection, Consent Order OGC File No. 1275, Tampa Electric 

Company (Apr. 10, 2001). 

Florida Department of Environmental Protection, Consent Order OGC File No. 1275, Tampa Electric 

Company (Jan. 24, 2007). Remedial Action Plan approved.

Effects of Phosphate Mineralization (1977): Effects of Phosphate Mineralization and the Phosphate 

Industry on Radium-226 in Groundwater of Central Florida. R. F. Kaufman and J.D. Bliss, USEPA Office 

of Radiation Programs, Las Vegas Facility, Las Vegas, Nevada, EPA/520-6-77-010, October 1977.

Accessed Online July 2012.

http://nepis.epa.gov/Exe/ZyNET.exe/9100Q1RV.txt?ZyActionD=ZyDocument&Client=EPA&Index=197

6%20Thru%201980&Docs=&Query=FNAME%3D9100Q1RV.TXT%20or%20%28%20hawthorne%20o

r%20phosphorite%20or%20florida%20or%20grology%20or%20geohydrology%29&Time=&EndTime=

&SearchMethod=1&TocRestrict=n&Toc=&TocEntry=&QField=&QFieldYear=&QFieldMonth=&QFiel

dDay=&UseQField=&IntQFieldOp=1&ExtQFieldOp=1&XmlQuery=&File=D%3A%5CZYFILES%5CI

NDEX%20DATA%5C76THRU80%5CTXT%5C00000017%5C9100Q1RV.txt&User=ANONYMOUS&

Password=anonymous&SortMethod=h%7C-

&MaximumDocuments=10&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display=

p%7Cf&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&M

aximumPages=1&ZyEntry=1&SeekPage=x

Florida Electric Power Coordinating Group, Inc. (FCG) comment to the docket: Carl Eldred, Hopping 

Green & Sams, Attorneys and Counselors on behalf of Robert W. Klemans, Chair, Environmental 

Committee, EPA-HQ-RCRA-2009-0640-10498 (Attachment J).

Cordiano (2011): Review of Coal Combustion Residual Storage and Disposal Processes of the Florida 

Electric Industry. Victor Cordiano, December 2011, State of Florida Public Service Commission Office of 

Auditing and Performance Analysis. PA-0-0-004. Accessed Online July 2012.

http://www.psc.state.fl.us/publications/pdf/electricgas/ReviewCoal_2011.pdf

Hillsborough County (2002): The Environmental Protection Commission of Hillsborough County 2002 

Annual Report (accessed Online April 2012; (No longer accessible).

http://www.epchc.org/annual_report_files/Annual%20Report%202002%20Fin

al.pdf 

Desalination: A National Perspective (2008), Water Science and Technology Board (WSTB), the 

National Academies Press. Accessed Online July 2012.

http://www.nap.edu/openbook.php?record_id=12184&page=59
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

31

Yates et al., (2011): Yates, K.K., Greening, Holly, and Morrison, Gerold, eds., 2011, Integrating 

Science and Resource Management in Tampa Bay, Florida: U.S. Geological Survey Circular 

1348, 280 p., available at http://pubs.usgs.gov/circ/1348/. Accessed Online July 2012.

http://pubs.usgs.gov/circ/1348/pdf/Chapter%206_157-202.pdf

De la Parte (2007): Desalination and Reclaimed Water -- Emerging Issues in Eastern Water Law. 

Edward P. de la Parte, Jr. de la Parte & Gilbert, P.A., Tampa, Florida. American Bar Association, 

Section of Environment, Energy, and Resources, 15th Annual Section Fall Meeting, Pittsburgh, 

PA, September 26-29, 2007. Accessed Online July 2012.

http://www.dgfirm.com/pdf/07-08-13_Eastern_Water_Desal-Reuse.pdf

Altschuler et al (1964): Field Guidebook: Geology and Geochemistry of the Bone Valley 

Formation and its Phosphate Deposits, West Central Florida. Z. S. Altschuler, J. B. Cathcart, and 

E.J. Young, 1964 (revised and reprinted 1994), Miami Geological Society. Accessed Online July 

2012.

http://sofia.usgs.gov/publications/reports/mgs_altschuler1964/mgs-altschuler-1964.pdf

PTb06. CD McIntosh Jr. Power Plant, City of Lakeland, Lakeland, Polk County, Florida

Type: Landfills (One on top of a phosphate mine pit), Sludge Dewatering Area, and Process Wastewater 

Ponds.

Background and Description: The C.D. McIntosh Jr. Power Plant Unit 3 is a 365-MW, coal-fired 

electrical generating unit originally certified under the PPSA in 1978109 and became operational in 

1981.110 The McIntosh plant occupies some 450 acres on the northeastern shore of Lake Parker, a wellpopulated lake often used for recreation purposes. The site contains two unlined Coal Combustion 

Residual (CCR) landfills, as well as a coal storage area, process wastewater ponds and an FGD 

 

109 According to FDEP’s comment to the proposed CCR rule docket: EPA-HQ-RCRA-2009-0640-4846 as well as to 

FDEP’s comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0285, the facility was certified 

under the PPSA in 1974.

110 This unit is jointly owned by Lakeland Electric and the Orlando Utilities Commission (OUC); OUC has a 40 

percent undivided interest in the unit. According to City of Lakeland Annual Report (2002), additional generating 

units at McIntosh Plant include two gas and oil-fired steam turbine generators (Units 1 and 2, with 204 MW 

capacity), and a combustion turbine and two diesel generators that provide 26 MW peaking capacity. As of 2002, 

petroleum coke was used for up to 20 percent of the fuel supply for generation Unit 3. According to Power (2012) 

and Lakeland Electric (2013), the Unit burns 600,000 tons of coal/year, blends of Central Appalachian (eastern 

Kentucky) and Illinois Basin (southwest Indiana) coals, hauled by rail line via CSX Transportation, and at times also 

imports coal from Columbia. Lakeland Electric (ibid) contains additional useful information on McIntosh 

Generating Unit No. 3 (See pages 2-6 to 2-7, Table 2-1, and Table 2-2b.)

As a supplement to coal, Unit 3 has been designed to burn shredded solid waste that contributes up to 10 percent of 

its total fuel requirement at full load. According to Sourcewatch (2012), in 2005, the City began selling much of the 

ash to the construction industry for use in concrete, with revenues growing to more than $1 million in fiscal year 

2008. Then, the housing market collapsed, slashing those earnings in the following years: in fiscal year 2010, the 

city made only $60,347, even though it sold more coal ash than ever, due to falling demand and costs.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

32

dewatering area.111 A “marsh waste water treatment system” along the northwestern, western, and 

southwestern property line provides make up cooling water and has been used for unspecified CCR 

treatment.112 The site has over 41 monitoring wells, however not all have available data because the 

Florida Department of Environmental Protection (FDEP) only requires some wells to be tested.113 No 

offsite monitoring data is available. The plant has a National Pollutant Discharge Elimination System 

(NPDES) permit.114

The McIntosh/Lakeland Power Plant is located in Florida’s Central-Highlands physiographic province, on 

the Miocene-age phosphoritic Bone Valley Member of the Peace River Formation. The Peace River 

Formation is underlain by the Miocene Arcadia Formation that comprises sandy, phosphatic, and clayey 

dolomite and limestone.115 The southern landfill sedimentation pond and the de‐watering and stacking 

area (for process wastewater dredged sludge) were built on top of an abandoned phosphate mine pit. This 

mine pit likely has some influence on groundwater flow under the site. Florida’s surficial, unconfined 

aquifer coincides with the Peace River Formation, whereas Florida’s semi-confined, “Intermediate 

Aquifer” is associated with the Arcadia Formation.116

Impact and Damage Claims: EIP (2010a) indicates that a 2001 FDEP Consent Order identified 

arsenic, lead, manganese, selenium, cadmium, vanadium, nitrate, and total dissolved solids (TDS) above 

the EPA Maximum Contaminant Level (MCL) and Secondary EPA MCL (SMCL) on the site. 

EIP (2010a) also notes that groundwater monitoring in January 2010 found arsenic concentrations 

exceeding the MCL in fifteen wells monitoring three water-bearing zones of groundwater. The highest 

concentration for arsenic was 0.0165 mg/L (1.65 times the MCL)117. Exceedances of Secondary MCLs 

(SMCLs) for iron, manganese, pH, total dissolved solids, or sulfate have been measured in 32 of 36 wells 

monitoring the CCR landfill and a coal pile area.

The highest concentrations of sulfate, both exceeding the SMCL, in the January 2010 sampling event 

were found around the southern landfill in wells 28S and 29S (monitoring the shallow aquifer), at 1,274 

mg/L and 485 mg/L, respectively; the sedimentation basin of the southern landfill in well 6I (monitoring 

 

111 According to Clean Water Action (2012), Coal Ash Disposal Table, ‘one pond has 2 liners’, and ‘2 landfills have 

2 liners.’

112 According to City of Lakeland Annual Report (2002), this is part of the City of Lakeland Northside Waste Water 

Reclamation Facility: treated effluent from the facility is discharged to an effluent storage tank. Effluent held in the 

tank is reused as cooling make-up water by the McIntosh Power Plant that is located immediately south of the 

treatment facility. Excess effluent, exceeding the requirements at the power plant, is bypassed, for disposal, to the 

Lakeland wetlands system. This artificial wetland system occupies 1,600 acres of former phosphate clay settling 

areas. It uses a combination of biological and physical methods to remove pollutants from the treated effluent prior 

to its discharge to the Alafia River.

113 Citing FDEP’s Consent Order (2001), EIP (2010a) claims that as of November 2001, 21 shallow surficial aquifer 

wells, 11 intermediate (deep surficial aquifer) wells, and 9 deep aquifer wells existed around McIntosh Power 

Plant’s two CCR landfills, coal pile area, and sludge de-watering area. Additional wells are near the process 

wastewater ponds and in a “marsh treatment area” along the western property boundary; however, monitoring 

results are not available for most of these wells because the FDEP does not require the McIntosh Power Plant to 

sample these wells.

114 No. FL0026301; expired 2005, and FLR05A184.

115 Campbell (1933).

116 Campbell (1986).

117 EIP (2010a) claims that that the McIntosh Power Plant used a very high detection limit for arsenic of 0.0113 

mg/L, which is higher than the MCL standard of 0.010 mg/L. Therefore, it is impossible to tell from laboratory 

reports exactly how many wells were contaminated with arsenic at or just below the MCL.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

33

the intermediate aquifer), at 770 mg/L; and near the property line by the northern landfill in well 23I, 

mentioned above. The highest concentrations of TDS, which were also greater than the SMCL (500 

mg/L), were generally associated with wells that had the highest concentrations of sulfate. The SMCL for 

pH (6.5 – 8.5 units) was not achieved at 25 of the 36 wells sampled. Lowest values, ranging from 3.94 to 

4.41 units, were found in wells monitoring the shallow and intermediate aquifers near the coal pile/sludge 

stack-out pile, the northern landfill area near the property line, and the southern landfill.

The shoreline of Lake Parker is densely populated with residences, and the Lake is used for recreational 

purposes. There are two private drinking water wells and 20 commercial and municipal wells that are 

located within a two-mile radius of the plant.118 

Industry claims that the McIntosh/Lakeland Plant does not present an environmental or public health risk 

to area groundwater users, because contrary to EIP’s (2010a) allegations, all private and public drinking 

water wells in the vicinity of the plant show no impacts from the power plant’s activities and 

operations.119

Evaluation against Proven Damage Criteria120

Resolution: FDEP issued a Consent Order in 2001 (including approximately $180,000 in civil penalties) 

because of impacts to groundwater and required additional monitoring. The CO did not require off-site 

monitoring and therefore none has been performed. FDEP also issued a Warning Letter on November 16, 

2000 for failure to notify FDEP of parameter exceedances during quarterly groundwater monitoring, 

failure to submit required annual reports from 1990 to 1999, and for discharges of process wastewater to 

the storm water drainage system.

 

118 EIP (2010a).

119 EPA-HQ-RCRA-2009-0640-10498 (Attachment J).

120 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 MCLs 

for arsenic, lead, cadmium, and selenium.

 Onsite groundwater data exceeded secondary MCLs for 

iron, sulfate, TDS, manganese, and nitrate. 

 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

 FDEP issued a Consent Order in 2001 because of impacts to 

groundwater and required additional monitoring, though no 

offsite monitoring. The Consent Order included 

approximately $180,000 in civil penalties. 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

34

Florida Electric Power Coordinating Group, Inc. (FCG) claims121 that the McIntosh Plant should not be 

identified as a site which constitutes a proven damage case, because EIP’s (2010a) allegations fail to 

account for Florida’s regulatory code.

122 FCG claims that the power plant is in compliance with 

applicable FDEP groundwater regulatory standards and requirements: The December 7, 2001 FDEP 

Consent Order established that Lakeland would further investigate and analyze potential groundwater 

impacts associated with operations of the power plant, and that associated corrective actions would be 

required “if necessary.” In response, Lakeland has completed considerable groundwater-related data 

gathering and analyses, determining that no primary or secondary or drinking water standards or 

groundwater clean-up target levels have been exceeded outside of an FDEP authorized Zone of Discharge 

(ZOD). Lastly, Lakeland has prepared and implemented a Best Management Plan (BMP), a permanent 

Waste Management Plan (WMP), and a modified groundwater Monitoring Plan (GWMP) for the power 

plant so as to ensure that present and future operations will be conducted with minimal impact to 

groundwater resources.

In its comment to the docket, FDEP concurs with the cited FCG arguments.123 USWAG claims that this 

site does not qualify as a damage case.124

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

arsenic, lead, cadmium, and selenium and the SMCLs for iron, sulfate, TDS, manganese, and nitrate have 

been found onsite. The FDEP issued a Consent Order because of groundwater impacts that required 

additional monitoring; however, there was no 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 #4, 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 #4. ICF, 10/2010.

 

121 None of the data referenced for this alleged damage case satisfies EPA’s criterion of an “exceedance[s] of a 

primary drinking water standard that [is] measured in groundwater at a sufficient distance from the waste 

management unit to indicate that hazardous constituents had migrated to the extent that they could cause human 

health concerns.” Carl Eldred, Hopping Green & Sams - Attorneys and Counselors on behalf of Robert W. Klemans, 

Chair, Environmental Committee, Florida Electric Power Coordinating Group, Inc. (FCG): EPA-HQ-RCRA-2009-

0640-10498.18 (Attachment J).

122 Namely, Florida Statutes Chapter 403 and the groundwater protection standards provided in Chapter 62-520 

Florida Administrative Code.

123 FDEP’s comment to the proposed CCR rule docket: EPA-HQ-RCRA-2009-0640-4846 and FDEP’s comment to 

the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0285.

124 Comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211): “A 2001 FDEP Consent Order 

identified constituents on‐site in exceedance of MCLs/SMCLs. The Consent Order required additional downgradient 

wells, additional off‐site assessment activities, Interim Groundwater Monitoring Plan, Contamination Assessment 

Plan, Source Characterization Work Plan, and Civil Penalties. 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 I (Cases 1-32) December 2014

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US EPA, Facility Registry System, Facility Detail Report, CD McIntosh JR Power Plant, Accessed 

Online Oct 2010. 

http://oaspub.epa.gov/enviro/fii_query_dtl.disp_program_facility?p_registry_id=110000364882

City Of Lakeland, C.D. McIntosh, Jr. Power Plant, Units 3 And 5, Case No. Pa 74-06p, Conditions of 

Certification, Modified 11/24/08. Accessed Online May 2012. 

http://www.dep.state.fl.us/siting/files/certification/pa74_06_2008_P.pdf

Campbell (1986): Geology of Polk County, Florida. Kenneth M. Campbell, Florida Geologic Survey 

Open File Report 13, 1986. Accessed Online May 2012.

http://ufdc.ufl.edu/UF00001012/00001/14j

Campbell (1933): Geologic Map of Polk County, Florida. K. Campbell, Florida Geological Survey Open 

File Map Series 46, 1933. Accessed Online May 2012.

http://ufdcimages.uflib.ufl.edu/UF/00/09/43/68/00001/POLK.pdf

City of Lakeland Annual Report (2002): Annual Report to Bondholders of the City of Lakeland, Florida, 

for the Fiscal Year Ended September 30, 2002. Accessed Online May 2012.

http://www.lakelandgov.net/Portals/Finance/Bond/2002%20Annual%20Report%20to%20Bondholders.pd

f

Power (2012): Upgraded Controls Position McIntosh Plant for Efficient Operations. Power, Business and 

Technology for the Global Generation Industry, May 1, 2012. Accessed Online August 2014.

http://www.powermag.com/upgraded-controls-position-mcintosh-plant-for-efficient-operations/

Clean Water Action (2012): CD McIntosh JR Power Plant: A Waste Profile of Coal Ash, Clean Water 

Action Florida (undated, apparently 2012), Environmental Integrity Project. Data Pursuant to Freedom of 

Information Act Request to U.S. EPA “re: Questionnaire results for Steam Electric Power Generating 

Effluent Guidelines.” June 2012. 

Sourcewatch (2012): The McIntosh Plant. Sourcewatch, last updated September 4, 2012. Accessed Online 

August 2014.

http://www.sourcewatch.org/index.php/McIntosh_Power_Plant

Lakeland Electric (2013): 2013 Ten-Year Site Plan, Submitted to the Florida Public Service Commission, 

April 2013. Accessed Online August 2014.

http://www.psc.state.fl.us/library/filings/13/01615-13/01615-13.pdf
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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PTb07. Curtis H. Stanton Energy Center, Orlando Utility Commission (OUC),125 Orlando, 

Orange County, Florida

Type: Landfill and Runoff Ponds.

Background and Description: The Curtis Stanton Energy Center site contains an active CCR landfill 

(in which coal ash is initially hardened with lime and bottom ash is dewatered),126 three CCR and coal 

storage area runoff ponds, a recycled water pond, and a plant wastewater pond.127 EIP (2010) indicates 

that all of these units are believed to be lined. The site is located near residential areas east of Orlando. 

The Curtis Stanton Plant area sits on top of a surficial layer of Pleistocene sand, which is underlain by the 

highly-variable, Miocene–age Hawthorn Group. The Hawthorn Group consists of various combinations 

of sand, silt, clay, phosphate, and highly weathered limestone. The Hawthorn Group is underlain by 

Eocene-age limestone that comprises the highly karstic Floridan aquifer.128

Since 2003, the site has reportedly been non-compliant with Florida Department of Environmental 

Protection’s (FDEP) groundwater and surface water monitoring criteria and operational requirements. The 

Orlando Utility Commission (OUC) has agreed to investigate the extent of groundwater contamination at 

the site; however no off-site groundwater or surface water monitoring has been required. 

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

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

FDEP Groundwater Clean-up Target Levels (CTLs) for several constituents, including gross alpha, 

radium-226, aluminum, chloride, iron, manganese, sodium, sulfate, vanadium, total dissolved solids 

(TDS), and pH.129

EIP (2010) noted that onsite data from surface water discharges had five constituents above FDEP 

 

125 Orlando Utilities Commission (chartered in 1923) is a municipally-owned public utility providing water and 

electric service to Orlando, Florida and portions of adjacent unincorporated areas of Orange County, as well as St. 

Cloud, Florida, in Osceola County. This facility was permitted under the Florida Electrical Power Plant Siting Act 

(PPSA), Chapter 403 Florida Statutes, Part II, in 1981.

126 According to FDEP’s comment to the proposed CCR rule docket: EPA-HQ-RCRA-2009-0640-06846 and 

FDEP’s comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0285, for the 1981 PPSA 

permit, OUC conducted EP Tox testing to show that their process of adding lime sludge to the ash and then 

compacting it in their landfill was protective because of the pozzolanic, cement-like, nature of the ash.

127 According to FDEP (2008), the power station is a 930 MW (nominal) facility consisting of two coal-fired Units -

No. 1 and No. 2, and ancillary equipment. Unit 1 began operating in 1987 and Unit 2 - in 1996. According to 

Guidelines for Water Reuse (2004), the Curtis Stanton Plant is a zero-water discharge facility which receives about 

10 million gallons of reclaimed water a day from an Orange County wastewater facility for cooling water. Rather 

than have the blow-down water return to the wastewater facility, which would have eventually increased the 

concentration of dissolved solids in the reclaimed water to a point where it could no longer be used as cooling water, 

the blow-down water is evaporated in brine concentrator and crystallizer units crystallized at the Curtis Stanton 

facility and disposed of at a landfill. See also: 

http://www.ouc.com/en/news_and_information_ctr/about_ouc/stanton.aspx

128 Kuhns et al., (2003).

129 For reference, water quality measurements of Rock Springs, Wekima Springs, and Witherington Spring, located 

over 20 miles northwest of the Curtis Stanton Station and representing artesian conditions of the Floridan aquifer, 

show the following compositions (based on one or more, multi-year analysis of one or more springs per constituent): 

TDS: 130-140 mg/L, sulfate: 5.3-13 mg/L, chloride: 6.1-10 mg/L, strontium: 240 μg/L, iron: 30-70 μg/L, copper: 10 

μg/L, and manganese: 10μg /L (Rosenau et al., 1977). 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

37

Surface Water CTLs, including aluminum, sodium, chloride, sulfate, and gross alpha. Overall, since 

2003, there have been multiple substantive exceedances of groundwater and surface water clean-up 

target levels and secondary MCLs.130

Considering that the underlying Hawthorn Group contains economic phosphorite that is being mined in 

the adjacent Polk County, it is reasonable to assume that the acidic water effluents discharged by the 

facility end dissolving some of the carbonate and phosphate rocks, releasing uranium and its daughter 

radionuclides,131 and causing elevated levels of gross alpha and Ra-226.132

EIP (2010) noted that FDEP inspections of the Curtis Stanton Energy Center since 2008 have revealed 

compliance problems such as: the CCR landfill was operating without a required permit, inadequate 

freeboard in ash ponds, unpermitted discharge of pollutants to a wetland, failure to collect stormwater 

samples, and water discharges of pH 4.0.

Resolution: EIP (2010) noted that FDEP inspections of the Curtis Stanton Energy Center since 2008 

have revealed compliance problems such as: the CCR landfill was operating without a required permit, 

inadequate freeboard in ash ponds, unpermitted discharge of pollutants to a wetland, failure to collect 

stormwater samples, and water discharges of pH 4.0.

FDEP has reportedly required upgrades to the facility, additional monitoring of the landfill, and 

determination of waste type (Class I or Class III); however OUC has not fully addressed FDEP’s requests. 

FDEP concedes that some contaminants have leached and impacted water quality near the landfill; 

however, the problem is completely contained on-site and there is no danger of any impacts to human 

health or potable drinking water wells. FDEP is working with the facility to assess the extent of this 

 

130 Quarterly groundwater monitoring data from upper surficial aquifer wells show the following exceedances of 

FDEP Groundwater Clean-up Target Levels (citing maximum concentrations): aluminum: 67 mg/L (standard: 0.05 

mg/L); chloride: 2,800 mg/L (standard: 250 mg/L); iron: 29 mg/L (standard: 0.3 mg/L); manganese: 0.3 mg/L 

(standard: 0.05 mg/L); sodium: 1,200 mg/L (standard: 160 mg/L); sulfate: 1,600 mg/L (standard:. 250 mg/L); total 

dissolved solids (TDS): 13,000 mg/L (standard: 500 mg/L); and gross alpha radiation: 65.4 pCi/L (standard: 15 

pCi/L). Wells near the coal ash ponds have exceeded FDEP Clean-Up Target Levels for iron, aluminum, vanadium, 

TDS, sodium, chloride, gross alpha, and radium-226. Coal storage area wells have exceeded Clean-Up Target 

Levels for aluminum, iron, and pH (<3). Wells at the coal ash landfill’s eastern area have exceeded FDEP clean-up 

target levels for aluminum, iron, manganese, TDS, chloride, sulfate, gross alpha, radium-226, and pH. Surface water

discharges exceeded FDEP Freshwater Clean-up Target levels for aluminum: 40,000 μg/L (standard: 13 μg/L); 

sodium: 770 mg/L (standard: 160 mg/L); chloride: 3,200 mg/L (standard: 250 mg/L); sulfate: 750 mg/L (standard: 

250 mg/L); and gross alpha: 27.9 pCi/L (standard: 15 pCi/L). In addition, secondary MCLs were exceeded for iron: 

3.5 mg/L (standard: 0.3 mg/L); manganese: 0.086 mg/L (standard: 0.05 mg/L); TDS: 6,500 mg/L (standard: 500 

mg/L); and pH: 4.06 (standard: 6 -9). Furthermore, inspections of Curtis Stanton Energy Center revealed compliance 

problems such as the un-permitted discharge of pollutants to a wetland and water discharges of pH 4.0. 

A separate, additional data review by FDEP concluded that groundwater monitoring results since 1987 at four wells 

along the eastern side of the landfill (MW-11, 12, 13, and 15) were influenced by leachate from the coal ash landfill 

– as indicated by increases in beryllium, chloride, calcium, magnesium, sodium, sulfate, total dissolved solids 

(TDS), manganese, and vanadium. The FDEP concluded that the groundwater in those wells was characteristic of 

CCR.

131 According to Osmond et al (1986) the median value for the uranium content of the Florida phosphates is from 

100 to 200 ppm. Whereas in the tetravalent state uranium is quite immobile, in the hexavalent state, uranium is 

relatively mobile as the uranyl ion, UO2

+2. Further complexation can occur depending on pH and the presence of 

other ions. The most stable uranyl carbonate complex in the pH range 4-10 is UO2(CO3)2

-2

132 Effects of Phosphate Mineralization (1977).
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

38

contamination and conduct corrective actions if necessary. FDEP states that it will also require bottomliner systems for any future disposal units at their on-site landfill. 133

Evaluation against Proven Damage Criteria134

ICF (2010) rationale: Potential Damage. <Ground water exceedances of the primary EPA MCL for 

gross alpha have been found on site. While onsite surface water samples have exceeded FDEP Surface 

Water CTLs, there is no risk assessment or scientific study available that explicitly documents evidence 

of damage to human health or the environment. The status of enforcement activities is unclear, and 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 #2. 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 #2. ICF, 10/2010.

FDEP (2008): State Of Florida Department Of Environmental Protection Orlando Utilities Commission 

Curtis H. Stanton Energy Center Units 1 & 2, Combined Cycle Units A And Unit B PA 81-14K 

Supplemental Conditions Of Certification Modified 07/24/08. Accessed Online March 2012. 

http://www.dep.state.fl.us/siting/files/certification/pa81_14_2008_K.pdf

Guidelines for Water Reuse (2004). Technology Transfer and Support Division, National Risk 

Management Research Laboratory, Office of Research and Development Cincinnati, OH, U.S. 

 

133 FDEP Comments to the proposed CCR rule Docket: EPA-HQ-RCRA-2009-0640-6846 and FDEP’s comment to 

the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0285.

134 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 gross alpha radiation. 

 Onsite groundwater data exceeded FDEP Groundwater 

CTLs for several constituents.

 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 surface water data exceeded FDEP Surface 

Water CTLs for aluminum, sodium, chloride, sulfate, 

and gross alpha. 

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

 FDEP has reportedly required various operational and 

monitoring actions associated with compliance 

problem identified during inspections. 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

39

Environmental Protection Agency, Municipal Support Division Office of Wastewater Management Office 

of Water Washington, DC , and U.S. Agency for International Development, Washington, DC. 

EPA/625/R-04/108 September 2004. Accessed Online March 2012.

http://www.epa.gov/nrmrl/wswrd/dw/smallsystems/pubs/625r04108.pdf

Effects of Phosphate Mineralization (1977): Effects of Phosphate Mineralization and the Phosphate 

Industry on Radium-226 in Groundwater of Central Florida. R. F. Kaufman and J.D. Bliss, USEPA Office 

of Radiation Programs, Las Vegas Facility, Las Vegas, Nevada, EPA/520-6-77-010, October 1977. 

Accessed Online March 2012.

http://nepis.epa.gov/Exe/ZyNET.exe/9100Q1RV.txt?ZyActionD=ZyDocument&Client=EPA&Index=197

6%20Thru%201980&Docs=&Query=FNAME%3D9100Q1RV.TXT%20or%20%28%20hawthorne%20o

r%20phosphorite%20or%20florida%20or%20grology%20or%20geohydrology%29&Time=&EndTime=

&SearchMethod=1&TocRestrict=n&Toc=&TocEntry=&QField=&QFieldYear=&QFieldMonth=&QFiel

dDay=&UseQField=&IntQFieldOp=1&ExtQFieldOp=1&XmlQuery=&File=D%3A%5CZYFILES%5CI

NDEX%20DATA%5C76THRU80%5CTXT%5C00000017%5C9100Q1RV.txt&User=ANONYMOUS&

Password=anonymous&SortMethod=h%7C-

&MaximumDocuments=10&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display=

p%7Cf&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&M

aximumPages=1&ZyEntry=1&SeekPage=x

Kuhns et al., (2003): Deep Foundations in the Challenging Geology of Central Florida. Gary Kuhns, 

Mohamad Hussein, Kathy Gray, pp. 33-43, in Proceedings of the 28th Annual Conference on Deep 

Foundations, 2003, Miami Beach, Florida, Deep Foundations in Compressible Soil and Soft Rock.

Accessed Online November 2012.

http://www.pile.com/reference/DeepFoundations2003/DeepFoundationsChallengingGeology.pdf 

Rosenau et al., (1977): Springs of Florida, Jack C. Resenau, Glen L. Faulkner, Charles W. Hendry, Jr., 

and Robert W. Hull, State of Florida Bureau of Geology Bulletin 31, prepared by US Geological Survey, 

in cooperation with Florida Bureau of Geology, Division of Resource Management, Department of 

Natural Resources, and Bureau of Water Resources Management, Florida Department of Environmental 

Regulation, Tallahassee, Florida, 1977. Accessed Online January 2013.

http://ufdc.ufl.edu/UF00000232/00002/3j

Osmond et al (1986): Radioelement Migration in Natural and Mined Phosphate Terrains, final report. J. 

K. Osmond et al., Department of geology, Florida State University, Tallahassee, Florida, June 1984. 

Accessed Online March 2012.

http://www1.fipr.state.fl.us/fipr/fipr1.nsf/129fc2ac92d337ca85256c5b00481502/915e25dec051bbf785256

b2f00595399/$FILE/05-002-027Final.pdf
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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PTb08. Seminole Generating Station, Seminole Electric Cooperative Inc. (SECI), Palatka, 

Putnam County, Florida

Type: FGD Landfill and Runoff Ponds.

Background and Description: The Seminole Generating Station (SGS)135 site contains an active, 

unlined flue gas desulfurization (FGD) landfill,136 three lined process wastewater ponds, and two unlined 

storm water runoff ponds. The FGD sludge is dewatered and stabilized with lime and fly ash. Excess 

water from the FGD system is collected in the process wastewater ponds. The site is located within onehalf mile of the St. Johns River. Deep and shallow aquifers are contaminated far above FDEP standards 

and secondary drinking water standards, and contaminated groundwater has affected on-site wetlands.

The SGS site is underlain by rock units ranging in age from Paleocene to Recent. Rocks of the Hawthorn 

Group, located some 30 to 200 feet below the unconsolidated, surficial deposits, are vulnerable to the 

development of karst phenomena such as sinkholes.137 A shallow surficial aquifer of a fine to silty sand 

exists to a depth ranging from 23.5 to 48.5 feet below ground surface. A deeper surficial aquifer occurs 

underneath this shallow aquifer at an average depth of 43 feet BGS. Eleven groundwater monitoring wells 

were drilled in the shallow surficial aquifer, and six wells - in the deeper portion of the surficial water 

table aquifer.138 As part of an Interim Remedial Action Plan approved by Florida Department of 

Environmental Protection (FDEP) in 2004, Seminole Electric Cooperative was required to construct a 

contaminated groundwater capture system and perform groundwater monitoring. The groundwater 

monitoring is ongoing since 2004 with results reported quarterly to FDEP. 

Impact and Damage Claims: According to FDEP report139 there are exceedances of primary and 

secondary drinking water and water quality standards in groundwater and surface water. Groundwater

contamination at the SEP FGD landfill measured arsenic at x19 MCL and lead at over x10, boron at over 

x40 its guidance concentration, aluminum at over x20 SMCL, and sulfate at over x3 SMCL. Some of 

 

135 The Seminole Generating Station (SGS) is located on 2,000 acres about six miles north of Palatka on U.S. 

Highway 17. This facility was permitted under the PPSA in 1978. Units and in-Service Dates: 715 MW (1984), 715 

MW (1985). 11,600 tons of washed-coal (11,700 BTU/lb) are rail-delivered daily, primarily from mines in western 

Kentucky and southern Illinois. The Seminole Generating Station is permitted to burn up to 30 percent of its fuel as 

petroleum coke (petcoke). Actual amounts burned depend on the price and availability of petcoke, and plant 

conditions (http://www.seminole-electric.com/pdf/seminole_generating_station_1.pdf). On September 5, 2008, the 

FDEP issued final air construction Permit to install the 750 MW, coal and petcoke-fired Unit 3 adjacent to existing 

Units 1 and 2 (FDEP Division of Air Resource Management (2009). However, in mid-December 2009, Seminole 

Electric Cooperative announced that it was canceling the 750 MW coal fired power plant project “because of 

regulatory and legal uncertainties over the future of coal“. 

Roughly 550,000 tons per year of synthetic gypsum from SGS’ wet scrubber are delivered annually by conveyor to 

Lafarge’s drywall manufacturing plant, opened in 2001 adjacent to SGS. Lafarge uses the synthetic gypsum to 

produce about 900 million square feet of wallboard each year (http://www.powermag.com/coal/Top-PlantsSeminole-Generating-Station-Palatka-Florida_2181_p2.html).

136 According to FDEP’s comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0285,

the process water ponds and stormwater ponds in the landfill area are lined with a geomembrane liner to stop the 

leakage to groundwater. A liner has been installed over an expanded portion of the FGD landfill “and is expected to 

be put into operation soon.”

137 For description of the SGS site’s geology and subsurface hydrology, see Seminole Electric Cooperative (2006), 

Vol. 1, Section 2, particularly pp. 2-15 to 2-18.

138 EIP (2010).

139 Cited in EarthJustice’s comment to the 2007 NODA: EPA-HQ-RCRA-2006-0796-0446. Also, FDEP (2012).
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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these constituents (including chloride, sulfate, total dissolved solids - TDS, boron, and iron) were detected 

up to one mile from the FGD landfill at concentrations exceeding FDEP Groundwater CTLs. 

Surface water data showed boron at over x1000 its guidance concentration. Surface water data also 

revealed exceedances for aluminum at x 4,100 the Class III fresh surface water Cleanup Target Levels 

(CTLs). In addition, there are SMCL exceedances in surface water for chlorine (over x30), sodium (over 

x3), sulfate (over x3) and TDS (over x8.5), and historical surface water data also exceeded s for boron 

and arsenic. 

EIP (2010) identified instances of groundwater and surface water contamination on site. While the onsite 

data suggest that contamination may have migrated, data from offsite groundwater or surface monitoring 

locations are not available. The contamination dates at least to 1999, when a hydrogeological study and 

contaminant assessment charted the approximate extent of the contamination and identified the cause of 

groundwater impacts from within the FGD sludge disposal area.

In response to these allegations, Seminole Electric Cooperative stated, and FDEP seconded,140 that EIP’s 

(2010) allegations fail to account for Florida’s regulatory code:141

(1) The groundwater data were all taken within the state-designated Zone of Discharge (ZOD); 

these standards do not apply within a ZOD under FDEP regulations and therefore would not 

qualify under EPA’s test of proof as proven damage case; The landfill is monitored by a DEP 

approved groundwater monitoring system that is fully protective of the groundwater outside of 

the facility's designated ZOD.

(2) Similarly, surface water samples were taken from ditches adjacent to the FGD landfill, where 

surface water quality standards are not applicable because they are part of an NPDES MultiSector General Permit treatment system;

(3) All the data were generated in 1998 and do not reflect current water quality standards at the 

site; 

(4) Because the Seminole Facility is an “existing installation” under FDEP regulations, the 

secondary standards do not apply at all.

(5) The Plant has collaborated with the FDEP in developing an interim Remedial Action Plan for 

the site, and the facility is in compliance with the Department's groundwater requirements.142

Seminole Electric Cooperative also challenges additional EIP (2010) allegations:143 (i) Contrary to 

allegations in the report, the surficial groundwater aquifer was the only aquifer in which some parameters 

were detected above background levels. The “deep” aquifer referred to in EIP (2010) is actually a lower 

portion of the surficial aquifer which is not used as a drinking water source in the area. (ii) The surface 

water samples referenced in EIP (2010) were taken from an NPDES-regulated stormwater system and not 

from a Florida Class III surface water. Class III surface water criteria, therefore, are not applicable. Thus, 

there have been no exceedances of state surface water standards or criteria. Finally, (iii) the referenced 

 

140 FDEP’s comment to the proposed CCR rule docket: EPA-HQ-RCRA-2006-0796-0460 and FDEP’s comment to 

the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0285. Also, Florida Electronic Power Coordinating 

Group, Inc. (FCG), EPA-HQ-RCRA-2009-0640-10498 and Seminole Electric Cooperative, Inc., EPA-HQ-RCRA2009-0640-10497. These arguments were seconded by FDEP in its comment to the proposed Rule docket: EPA-HQRCRA-2009-0640-6846.

141 Namely, Florida Statutes Chapter 403 and the groundwater protection standards provided in Chapter 62-520 

Florida Administrative Code.

142 The RAP requires the collection of groundwater from the surficial aquifer near the FGD landfill that is fed back 

into the power plant process.

143 Comment to the proposed CCR rule docket: EPA-HQ-RCRA-2009-0640-10497.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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wetland impacts were limited to stressed vegetation located on Seminole property. Ongoing monitoring 

activities demonstrate that the on-site vegetation diversity and density is improving due to a number of 

remediation efforts.

Evaluation against Proven Damage Criteria144

Resolution: FDEP-required groundwater capture system was constructed in 2004, and remedial 

monitoring is ongoing.

FDEP indicates that some areas of past stressed vegetation in an on-site wetland near the FGD landfill 

appear to be recovering. Seminole claims that water quality has improved in and around the CCR landfill 

as a result of the lining of all landfill stormwater and process ponds from 1997 to 1999. A drain system 

was also installed on three sides of the landfill to collect all impacted groundwater beneath the landfill.

The facility has implemented a DEP approved Interim Remedial Action Plan (IRAP) requiring the 

collection of groundwater from the surficial aquifer near the FGD landfill that is fed back into the power 

plant’s process. In conjunction with this activity, Seminole continues to monitor groundwater in wetlands 

in and around the CCR landfill.

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

arsenic and lead have been found on site near the landfill. While surface water samples have exceeded 

FDEP benchmarks for boron, aluminum, and arsenic, there is no risk assessment or scientific study 

available that explicitly documents evidence of damage to human health or the environment. Ongoing 

remedial action and monitoring is not being driven by an administrative ruling or court decision.>

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 #3. Environmental 

Integrity Project and Earthjustice. February 24, 2010.

 

144 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 and lead.

 Onsite groundwater data exceeded FDEP Groundwater 

CTLs for a number of constituents. 

 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 data exceed FDEP benchmarks boron, 

aluminum, and arsenic.

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 FDEP-required groundwater capture system was 

constructed in 2004 and remedial monitoring is ongoing. 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

43

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 #3. ICF, 10/2010.

FDEP (2012): Solid Waste Enforcement and Compliance Documents, Monitoring Plans and Documents 

Related, Seminole Electric Cooperative, Florida DEP web site. Accessed Online November 2012. 

http://appprod.dep.state.fl.us/WWW_WACS/REPORTS/SW_Facility_Docs.asp?wacsid=94790

FDEP Division of Air Resource Management (2009): Technical Evaluation and Preliminary 

Determination, Seminole Electric Cooperative/Seminole Electric Station, Project No. 1070025-011-AC 

(PSD-FL-375A), Minor Revisions, Putnam County, Florida. FDEP Division of Air Resource 

Management, Bureau of Air Regulation, New Source Review Section, June 12, 2009. Accessed Online 

November 2012.

http://www.dep.state.fl.us/air/emission/construction/seminole/TechnicalMACT.pdf

Seminole Electric Cooperative (2006): Site Certification Application, Seminole Generating Station Unit 

3, Palatka, Florida, Volumes I to III. Golder Associates, Inc., Tampa, Florida, March 2006. Accessed 

Online November 2012 (No-longer accessible).

http://www.usda.gov/rus/water/ees/pdf/seminole_sitecert_vol1_0306.pdf

http://www.usda.gov/rus/water/ees/pdf/seminole_sitecert_vol2_0306.pdf

http://www.usda.gov/rus/water/ees/pdf/seminole_sitecert_vol3_0306.pdf

PTb09. Joliet Generating Station 9 – Lincoln Stone Quarry Landfill, Midwest Generation, 

Joliet, Will County, Illinois145

Type: ‘Landfill’ (Actually, a Slurried CCR Receptacle and a Settling Pond in a Former Quarry) and Two 

Surface Impoundments.

Background and Description: Midwest Generation (under parent company Edison International) 

operates the Joliet 9 and Joliet 29 generating stations,146 which have been disposing of coal combustion 

residual (CCR) in the Lincoln Stone Quarry (LSQ) landfill since 1962. The quarry operates under a 

landfill permit;147 however, the site also includes two below-grade surface impoundments for the slurry 

 

145 In March 2014, a federal bankruptcy court judge approved the sale of all assets and operating companies of 

Edison Mission Energy -- parent of Midwest Generation, to NRG Energy Inc.:

http://www.chicagotribune.com/business/breaking/chi-midwest-generation-nrg-energy-20140311-story.html

146 Both plants are located approximately 40 miles southwest of Chicago. Based on Midwest Generation’s 2008 

Annual report (http://www.sec.gov/Archives/edgar/data/1134016/000104746909002059/a2190917z10-k.htm), the

operating units comprising the Joliet Station are referred to as Units 6, 7 and 8. Units 6, 7 and 8 came on line in 

1959, 1965 and 1966, respectively. Joliet Unit 6 (also known as Joliet Generating Station 9) is a 290 MW coal-fired

unit located southeast of and across the Des Plaines River from Joliet Units 7 and 8 (1601 South Patterson Rd., 

Joliet, IL 60436.) Joliet Units 7 and 8 (also known as Joliet Generating Station 29), located on the right bank of the 

Des Plaines River, are coal-fired and have a (net) combined capacity of 1,036 MW (and a nameplate capacity of 

1,326 MW). The Joliet Station burns Southern Powder River Basin coal which is shipped by rail from the North 

Antelope Rochelle and the Belle Ayr Mines in Gillette, Wyoming.

147 Permit # IL0002216.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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water used to move CCR from the generating stations to the landfill.148 The landfill and surface 

impoundments are unlined and most of the site remains active. In 1996 the landfill became exempt from 

Illinois Class I Groundwater Protection standards and the Illinois Environmental Protection Agency 

(IEPA) applied relaxed standards (Applicable Groundwater Quality Standards, AGQSs) to a number of 

contaminants.149 IEPA identified 94 private drinking water wells within one mile of the landfill. 

The Joliet Station area is underlain by the Ordovician-age Maquoketa Shale Group. Unconformities 

separate the Maquoketa Shale Group from the underlying Galena Group and the overlying Silurian-age 

dolomites and younger rocks. The Maquoketa150 consists of three formations (in ascending order): (i) the 

Scales Shale, a dominantly shale unit; (ii) the Fort Atkinson Limestone, a dolomite and/or limestone and 

shale; and (iii) the Brainard Shale, a dolomitic-shale. The Maquoketa Shale Group forms a principal 

Aquiclude. Where the Maquoketa directly underlies the Quaternary-age glacial deposits,151 limited 

amounts of water are obtained from joints and fractures. In those areas of the Middle Fort Atkinson 

Limestone underlying Silurian and Quaternary deposits where dissolution has occurred, yields have 

somewhat increased. The Maquoketa Shale Group is overlain by several hundred-feet thick, Silurian-age 

dolomites. These dolomites comprise the main regional aquifer.152 The Des Plaines River is a major area 

of discharge for the Silurian dolomite aquifer. 

According to EIP (2010a), the area of the LSQ landfill has four main hydrogeologic units: (i) the upper 

unconsolidated glacial deposits; (ii) the upper weathered Silurian dolomite; (iii) the lower Silurian 

dolomite; and (iv) the Brainard Shale/Ft. Atkinson dolomite. The underlying Scales Formation is a 

regional aquitard. The monitoring well network for the LSQ landfill includes 11 shallow zone wells, nine 

deep zone wells, and one surface water discharge point (S501, main quarry leachate). As a result of 

groundwater flow shifts caused by quarrying activities to the southeast, three monitoring well clusters 

were added south of the LSQ landfill. 

Natural groundwater flow beneath the LSQ landfill has historically been from south and east to the north 

and west, toward the Des Plaines River. EIP (2010a) notes studies undertaken by Midwest Generation’s 

(MG’s) consultants, according to which dewatering connected to expansion of mining activities at the 

Laraway Quarry, about 1,000 feet to the southeast of the LSQ, has created a flow component to the south 

and southeast, toward that quarry. This has resulted in the LSQ landfill losing its “inward” groundwater 

potentiometric gradient. A proposal by Brandon Road Properties (BRP) LLC, to dewater the inactive 

 

148 According to EIP (2010a), ash is sluiced into the Main Quarry, which occupies the southern area of the site, and 

slurry waters collect in a large pond in the north part of the Main Quarry (P1). The North Quarry, designated as the 

zone of attenuation, includes a settling pond and another pond in the southeast part of this area.

149 In its comment to the proposed CCR rule docket (EPA-HQ-RCRA-2009-0640-8244) Midwest Generation claims 

that because Illinois’ Parts 811 and 814 landfill regulations have general applicability and therefore, were not 

developed to address site-specific conditions that may exist at certain Illinois landfills, there is a provision in the 

Illinois Environmental Protection Act, Section 28.1 (415 ILCS 5/58.1, 1994) under which a landfill owner or 

operator may seek to “adjust” these regulatory standards to fit the different conditions at its landfill which were not 

considered as part of the adoption of the landfill regulations. When the required technical demonstration is 

successfully made, the Act authorizes the Illinois Pollution Control Board to grant an “adjusted standard” that takes 

site-specific conditions into account while still affording the same level of protection to public health and the 

environment as the landfill regulations. Therefore, Midwest Generation claims it is incorrect to refer to such 

adjusted standards as either “relaxed” or “reduced” standards, as does EIP (2010a).

150 The Maquoketa Shale Group is normally about 200 feet thick in Illinois, with a maximum of 250 to 300 feet. 

However, in areas where its top has been affected by erosion, the thickness is variable, and frequently, much less.

151 According to Figure 22 in Visocky et al., (1985), the thickness of the glacial deposits in the Plant’s area is less 

than 200 feet.

152 Visocky et al., (ibid).
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

45

Boyd Quarry immediately east of the LSQ landfill raised concerns that groundwater would also begin 

flowing east, to this quarry and northeast, toward a residential area.153 This concern led IEPA to deny 

BRP’s application for an NPDES permit.

Impact and Damage Claims: According to EIP (2011a) and Stant and Barkley (2011), CCR from 

Joliet 9 and Joliet 29 Stations has been placed in standing water in the bottom of the LSQ landfill for 

many years. IEPA has known of contamination of surrounding groundwater by coal ash since 1994. 

Since 1996, MG has been granted an adjusted standard allowing continued degradation of onsite 

groundwater. IEPA has approved applicable groundwater quality standards at levels exceeding Illinois 

Class I standards for boron, cadmium, and selenium by 5.9 times, 52 times, and 6.5 times, respectively. 

Similarly, the applicable groundwater quality standard IEPA approved at this site for molybdenum is 

more than 34 times above USEPA’s long-term health advisory (LTHA) level.

EIP (2010a) also notes that MG undertook sampling of 18 private wells near the LSQ landfill. The only 

ash-related contaminant examined in the wells was boron, which was found up to five times above 

background concentrations in eight of the wells south of the landfill (the other wells were to the east or 

“up-gradient”). EIP (2010a) claims that this would indicate that other contamination from the LSQ 

landfill would likely affect these down-gradient wells. After the sampling, MG offered to either buy out 

the properties or drill new, deeper wells for these residences south of the LSQ landfill.

EIP (2010a) also identified a number of instances of groundwater contamination in the monitoring wells 

around the LSQ landfill, noting reports from 2007, 2008, and 2009. EIP (2010a) notes a total of 50 

different exceedances of the IEPA AGQSs154 at 10 different wells, eight of which are over 150 feet from 

the LSQ landfill. The AGQSs are generally at or above the Illinois Class I Groundwater standard, which 

often matches the EPA Maximum Contaminant Level (MCL). The contamination indicated includes 

arsenic (up to 0.1 mg/L), above the primary EPA MCL at two wells located to the southeast, as well as 

sulfate (up to 690 mg/L), total dissolved solids (TDS: up to 1,300 mg/L), and pH (up to 9.98), above 

secondary EPA MCLs (SMCLs) in various wells. There is also contamination of ammonia (up to 5.3 

mg/L), above the AGQS, boron (up to 10 mg/L) above the AGQS and EPA Child Health Advisory, and 

molybdenum (up to 2.9 mg/L) above the AGQS and EPA Lifetime Health Advisory. Exceedances of 

selenium (up to 0.325 mg/L) and cadmium (up to 0.264 mg/L), above the corresponding primary EPA 

MCLs, were also noted in earlier reports at unknown groundwater monitoring locations. EPRI challenges 

this claim.155

EIP (2010a) also notes that the NPDES permit issued by IEPA for the LSQ landfill in 2000 identifies 

Outfall No. 5 as “quarry (ash pond) discharge.” Still, this permit requires only testing for pH and total 

suspended solids.156 The latest (August 2009) IEPA Inspection Report available at that time indicates that 

 

153 MG contends in its comment to the docket (EPA-HQ-RCRA-2009-0640-8244) that MG was actually the party 

who brought these concerns to the attention of IEPA, BRP and to the community and proposed alternatives to 

prevent any such risk from occurring.

154 Namely, the relaxed standards imposed by the IEPA in 1996.

155 In its comment to the proposed CCR rule docket (EPA-HQ-RCRA-2009-0640-9765) EPRI claims that the 

calculated limits for cadmium and selenium (based on statistical analysis of background data) in EIP (2010a) appear 

to have been misinterpreted to represent maximum observed concentrations at the Joliet 9 site. However, these 

concentrations appear to actually be calculated Applicable Groundwater Quality Standards (AGQS) for the site.

156 The current NPDES permit (IL0002216), for which the public notice ended on November 13, 2012, does require 

monitoring of a rather wide array of metals (As, Ba, Cd, Cr – hexavalent and total, Cu, Fe, Pb, Mn, Hg, Ni, Se, Ag, 

and Zn), in addition to cyanide, fluoride, oil, and phenols (IEPA, 2011).
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

46

MG is in compliance with the permit.157 MG concedes158 that limited amounts of collected leachate 

discharge into the Des Plaines River: in accordance with the AGQS granted by the IPCB for the LSQ, 

MG claims it maintains a leachate management system that consists of gravity-fed water from the Main 

Quarry to the North Quarry that keeps the water level below the natural water table elevation. After 

settling, the water is gravity-fed to the North Quarry and is then discharged through Outfall 005 to the 

Des Plaines River. Out of 8.5 million gallons of “leachate” managed daily, this drainage system captures 

all but 101,400 gpd (1.2 percent) of the water volume leaving the site via groundwater flow. The water 

volume leaving the site through a groundwater route is allowed to flow directly to the Des Plaines River, 

because there is no discernible effect on water quality in the River.

MG concedes that the LSQ had been granted six waivers from Class I standards.159 However, MG denies 

that a Notice of Violation (NOV) has been issued for non-compliance in the landfill;

160 and that MG’s 

proposal to provide alternative wells to residences south of the LSQ landfill was due to detected 

groundwater exceedances. MG states that in 2006, it sampled 18 residential wells located immediately to 

the south and southeast of the LSQ landfill, establishing that these wells were not degraded. Boron was 

used merely as an indicator parameter in this sampling of residential wells to search for potential Quarryrelated effects.161 Furthermore, MG claims that it did not “buy out” any residents, but rather made an 

unconditional offer to provide new, deeper wells for these residents. Also, groundwater modeling done at 

that time did not show that any excursion of a groundwater standard would affect these residential wells 

in the future.162

 

157 However, according to EIP (2010a), based on that report, from January 2008 to May 2009, pH exceeded the 

AGQS (6.14 to 8.56) in 7 of the 17 sampling events (maximum pH of 8.8); and apparently separate sampling related 

to the Groundwater NOV found exceedances of the AGQSs for barium, copper, and nitrate at the No. 5 Outfall.

158 EPA-HQ-RCRA-2009-0640-8244.

159 MG’s comment to the proposed CCR rule docket: EPA-HQ-RCRA-2009-0640-8244, states that the LSQ landfill 

was required to install a-26 groundwater monitoring well network, three of which are off-site. Eighteen of the 24 

parameters monitored at the landfill have AGQS values that are equal to or stricter than the corresponding Illinois 

Class I Groundwater standards. By inference, this suggests that the remaining six parameters monitored at the LSQ 

site have AGQS values that are less strict than the corresponding Illinois Class I groundwater standards. See also a 

preceding footnote for further clarification about the legal circumstances under which IEPA grants AGQSs.

160 MG’s comment to the proposed CCR rule docket: EPA-HQ-RCRA-2009-0640-8244 and Edison Mission 

Energy’s comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0237. MG claims that a draft 

NOV, developed based on a hypothetical, modeled set of future conditions that never occurred and which were 

associated with the proposed dewatering of Boyd’s Quarry east of the LQS, has been never finalized nor issued.

161 MG implemented a boron and boron isotope sampling program for the noted 18 wells south of the facility. Boron 

was chosen as an indicator of potential Main Quarry water impacts due to its conservative nature in the environment, 

which means that of all the constituents that may be associated with an ash landfill, boron has the ability to move 

uninhibited through the groundwater system and thus, it is the parameter that is reasonably expected to be the first 

indication of off-site migration of groundwater. Water samples were collected from the residential wells for boron 

isotope analysis as well as a sample of Main Quarry leachate. Based on a comparison of the isotope ratios from the 

residential wells to that of the Main Quarry leachate, it was concluded that the boron detected within residential 

wells did not originate from the Quarry. All of the boron results were well below the AGQS for boron (5.9 mg/L) 

that applies to the LSQ landfill, as well as below the Illinois Class I Groundwater standard for boron.

162 MG claims it has voluntarily and proactively initiated this residential well sampling program for residents to the 

south and southeast of the LSQ to both confirm that there was no impact to their wells from the landfill’s operations 

and to address their concerns about potential future developments, by offering to replace their residential wells with 

wells that obtain water from the Silurian dolomite, a deeper formation that is hydraulically isolated from any 

potential shallow groundwater impacts. MG also claims that groundwater modeling performed for past and current 

conditions does not indicate any loss of gradient or migration of constituents to the east/northeast toward the Smiley 

neighborhood. Groundwater model runs were made under a potential future scenario if the former owners of Boyd’s 

Quarry (a.k.a., Brandon Road Quarry) were allowed by IEPA to dewater their quarry for subsequent use as a 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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MG addresses EIP’s (2010a) claims that in August 2009 IEPA issued an NOV for ”failure to operate a 

leachate collection and management system that assures the protection of Class I Potable Resource 

Groundwater,” and that the NOV identified 50 exceedances of groundwater standards in 10 wells, 

including high concentrations of arsenic, barium, boron, copper, and molybdenum by claiming163 that 

evaluation of the 2007 arsenic, boron, and molybdenum data from the off-site wells G38S, G38D and 

G39S indicates that all values were below both the established AGQSs and Illinois Class I standards. MG 

concedes that groundwater monitoring did confirm exceedances of the AGQS at on-site locations G47S 

and G48S, along the southern side of the LSQ during and since 2007. These exceedances were associated 

with the LSQ as a result of dewatering operations some 1,000 feet southeast of the LSQ, moving 

groundwater from the Laraway Quarry to the south/southeast. This resulted in only a limited, temporary 

loss of inward gradient along the southern side of the LSQ landfill. 

Evaluation against Proven Damage Criteria164

 

construction debris landfill. This particular modeling suggested that there may be a loss of gradient to the 

east/northeast potentially resulting in migration of LSQ constituents in that direction. MG resolved this potential 

scenario by purchasing Boyd’s Quarry. Finally, MG responds to EIP’s (2010a) assertion that there are 94 wells used 

for drinking water within a one-mile radius of the LSQ landfill by stating that a ‘windshield’ survey of the area 

indicates that residential wells within a one-mile radius of the LSQ are located to the northeast and south/southeast 

of the facility; and that there are no residential wells located within a one-mile radius to the west or north of the 

LSQ, namely, in the down-gradient direction.

163 MG’s comment to the proposed CCR rule docket: EPA-HQ-RCRA-2009-0640-8244 and Edison Mission 

Energy’s comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0237.

164 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 MCLs 

for arsenic, selenium, and cadmium. 

 Onsite groundwater data exceeded the IEPA AGQSs for 

ammonium, boron, and molybdenum. 

 Onsite groundwater data exceeded EPA SMCLs for 

sulfate, TDS, and pH.

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 was found elevated in some sampled private wells, 

prompting Midwestern Generation to offer to buy the 

properties or provide a new deeper drinking well. 

 AGQS exceedances were noted in the discharge at the 

plant’s NPDES permitted outfall.

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

 IEPA issued a Notice of Violation (NOV) for “failure to 

operate a leachate collection and management system that 

assures the protection of Class I potable resource 

groundwater” citing a number of AGCS exceedances, 

including some at the NPDES permitted discharge.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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Resolution: According to IEPA,165 LSQ is a permitted Subpart C facility subject to the regulations of 35 

IAC 814 Subpart C and referenced portions of the 35 IAC 811 regulations. Because the LSQ was a preexisting facility with unique characteristics, the facility did not meet the design requirements intended for 

a 35 IAC 811 landfill. In order to be permitted under the solid waste program, the facility had to receive 

an adjusted standard from the Illinois Pollution Control Board (IPCB) for relief from specific regulations, 

specifically design requirements including the Applicable Groundwater Quality Standards (AGQS). The 

AGQS is a statistically derived value based on data sets that are unaffected by the facility. The sitespecific data set represents ambient background, which often does not reflect any ‘620 Class’ standards 

(e.g., ambient background may be naturally above or below the numbers listed under 35 IAC 620). 

The IPCB granted an adjusted standard that included 35 IAC 620 Class II Groundwater standards for 

several parameters north of the facility, between the disposal area and the De Plaines River (actually, a 

designation of a Groundwater monitoring Zone, GMZ). The AGQS is applicable to the remaining wells at 

the facility. Subsequent to receiving the adjusted standard, the IEPA permitted the facility in 1999.

Subsequent pumping in the adjacent Laraway Quarry area changed groundwater flow direction in the 

shallow zone such that impacts (e.g., boron, molybdenum, and arsenic) have been seen in a limited area in 

the southeast corner of the facility: the impacts are off-site, extending less than a quarter mile beyond the 

permit’s boundary. Because of the facility’s design and location, the LSQ could not meet the groundwater 

standards for the 35 IAC 811 regulations. 

On August 31, 2009, IEPA issued a NOV to MG for “failure to operate a leachate collection and 

management system that assures the protection of Class I potable resource groundwater”. The NOV cited 

exceedances of AGQS between July 14 and August 31, 2009 at the site.166 MG petitioned the IPCB for an 

extended GMZ, claiming that an inward gradient would be maintained at the site that would disallow 

contamination to escape the facility. The IEPA approved a corrective action of pumping wells for the 

southeastern LSQ area in 2009, along with additional groundwater assessment. MG implemented the 

corrective action in 2010; in 2011, the IEPA approved the assessment reports along with an interim GMZ 

for the southeast area of the facility, along with a proposal for additional, preventative, corrective action 

along the southern side of the LSQ. The corrective action has a two-fold purpose: to control the source 

(and reintroduce an inward gradient required by the IPCB) and to mitigate impacts in the south of the 

LSQ landfill. Currently, there are two approved GMZs encompassing the LSQ landfill and its immediate 

vicinity, and groundwater assessment and evaluation continues at the site.

 

165 IEPA (2011), and Richard P. Cobb, Deputy Manager, Division of Public Water Supplies, IEPA: IEPA’s 

September 1, 2011 response to citizens’ concerns raised in the 2010 Charlotte Public Hearing (a September 27, 2011 

email from J. Gevrenov, EPA Region 5, to A. Livnat, EPA/OSWER).

166 In the September 16, 2010 Chicago, IL public hearing in the wake of the proposed CCR rule (Comment to the 

docket TRANS-CHI-0167, Transcript pages 459-461), Jeff Stant of IEP stated that IEPA, in response to a FOIA 

request, had provided EIP with an NOV dated August 31, 2009, citing 50 violations of the groundwater standard at 

the site. EIP insist they have this NOV: http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccrhearing.htm. In its comment to the October 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0237), Edison 

Mission Energy challenges the veracity of EIP’s (2010a) disclosure by citing Rick Cobb, IEPA Bureau of Water.

EME claims that in an August 27, 2010 (?!) Herald News newspaper article, a draft NOV was posted “based on a 

hypothetical set of future conditions that never occurred. The hypothetical conditions were associated with the 

potential dewatering of Boyd’s Quarry east of the Quarry. Because these conditions never occurred, the NOV was 

never finalized or issued.”
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

49

According to MG,167 The corrective action program reestablished the inward gradient at the southeastern 

boundary of the LSQ. A cone of depression has been established between the south perimeter wells G48S, 

G47S and G38S and the LSQ. Groundwater from the southeastern perimeter of the site is now being 

drawn back to the north, to the extraction well system. Water from the LSQ that would flow to the south 

is also being intercepted by the extraction system. The extracted water is being discharged back into the 

Main Quarry portion of the LSQ. The off-site groundwater investigation is in process and is expected to 

be completed shortly.

USWAG claims that this site does not qualify as a damage case.168

ICF (2010) Rationale:169 Potential Damage. <Groundwater exceedances of the primary EPA MCLs 

for arsenic, selenium, and cadmium; the IEPA’s AGQS for ammonium, boron, and molybdenum; and the 

EPA SMCLs for sulfate, TDS, and pH have been found onsite. Elevated boron was found in eight nearby 

private wells; however the concentrations did not exceed any health-based standards. AGQS exceedances

were also noted in NPDES outfall discharge; however, there is no scientific study available that explicitly 

documents evidence of damage to human health or the environment from these effluent discharges. The 

IEPA has also issued a NOV to Midwestern Generation; however, this was for failure to correctly operate 

their leachate collection system, and does not indicate a finding of specific damage.>

 

167 EPA-HQ-RCRA-2009-0640-8244.

168 USWAG comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211): “The Illinois Pollution 

Control Board (IPCB) issued an adjusted standard for the Landfill in 1996. The conditions of the adjusted standard 

include:

Maintenance of an inward hydraulic gradient at the landfill to prevent leachate migration; and, any 

statistically significant increase above the Applicable Groundwater Quality Standard (AGQS) that is attributable to 

the facility and which occurs at or beyond the zone of attenuation with 100 years after closure the last unit accepting 

waste will constitute a violation. There have been numerous modifications to the landfill operating permit since 

1994. There are no other citations or information related to regulatory actions provided in the Reference Document 

concerning alleged off‐site impacts to groundwater or surface water.

The allegations for off‐site groundwater contamination above a health based standard are based on private 

party correspondence, including from a private attorney, alleging contamination of off‐site drinking water wells. The 

owner/operator of the facility has contested the validity of these allegations, arguing in public testimony before EPA 

that the facility is not responsible for the alleged off‐site ground water contamination of the identified drinking water 

wells [Midwest Generation, LLC. 2010. Comments of Midwest Generation, LLC at USEPA Public Hearings in

Chicago, Illinois on the USEPA’s: Hazardous and Solid Waste Management System; Identification and Listing

of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities; Proposed Rule (75 FR 35128,

June 21, 2010). September 16, 2010]. Potential exceedances in off‐site groundwater are being further investigated 

and addressed by the company in coordination with the Illinois EPA (Verbal communication, Midwest Generation 

(November 4, 2011.)

There is no evidence provided in the Reference Document [i.e., EIP (2010a)] concerning any on‐site or off‐

site impacts to surface water. The allegations in the Reference Document concerning surface water impacts cite 

samples collected from effluent discharges from the No. 5 Outfall, which is regulated by an NPDES permit. Further 

confusing the issue, water quality sampling results from the NPDES regulated outfall are compared to the 

Evaluation of Alleged CCR Damage Cases in the October 2011 NODA, 76 Federal Register 63252 Applicable 

Groundwater Quality Standard’s (AGQS’s) for the facility, which are a site‐specific groundwater standard for 

compliance wells within the zone of attenuation of a landfill based on Illinois EPA regulations.”

169 ICF’s (2010a) writeup is based on telephone calls to three IEPA regulators: Bill Buscher - Bureau of Water;

Dave Hardke - Regional Office; and Gwyneth Thompson - Bureau of Land, October 21, 2010 to October 25, 2010.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

50

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 #8, 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 #8. ICF, 10/2010.

Hood, Joel. Report Alleges Contamination of Private Wells in Joliet. Chicago Breaking News, August 26, 

2010. Accessed Online October 2010. 

http://www.chicagobreakingnews.com/2010/08/report-alleges-contamination-of-private-wells-injoliet.html (No longer accessible)

US EPA, Facility Registry System, Facility Detail Report, Midwest Generation, Joliet 9 Accessed Online 

October 2010. 

http://iaspub.epa.gov/enviro/fii_query_dtl.disp_program_facility?p_registry_id=110000432773

(No longer accessible)

IEPA (2011): Illinois EPA’s Ash Impoundment Strategy Progress Report, October 2011. Accessed 

Online June 2012.

http://www.epa.state.il.us/water/ash-impoundment/documents/ash-impoundment-progress-102511.pdf

Stant and Barkley (2011): Illinois at Risk. Lax safeguards and no enforcement endanger the water, air & 

lives of residents near coal ash dumps, Jeff Stant and Traci Barkley, Environmental Integrity Project and 

Prairie Rivers Network, August 17th, 2011. Accessed Online June 2012.

http://www.environmentalintegrity.org/documents/IllinoisatRisk.pdf Accessed June 2012

Visocky et al., (1985): Geology, Hydrology, and Water Quality of the Cambrian and Ordovician Systems 

in Northern Illinois. Adrian P. Visocky, Marvin G. Sherrill, and Keros Cartwright, 1985,

State of Illinois Department of Energy and Natural Resources Cooperative Groundwater Report 10. 

Illinois State Geological Survey, Illinois State Water Survey, in cooperation with United States 

Geological Survey. Accessed Online June 2012.

http://isws.illinois.edu/pubdoc/COOP/ISWSCOOP-10.pdf

IEPA (2011): Draft Reissued NPDES Permit to Discharge into Waters of the State, NPDES Permit No. 

IL0002216, Notice No. JAR: 11011701.ajo, Illinois Environmental Protection Agency Bureau of Water, 

Division of Water Pollution Control Permit Section, October 13, 2012.

www.epa.state.il.us/...joliet-9/h.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

51

PTb10. Marion Plant, Southern Illinois Power Cooperative, Marion, Williamson County, 

Illinois

Type: Landfill and Surface Impoundments.

Background and Description: The 293 MW Southern Illinois Power Cooperative (SIPC)170 has placed 

coal combustion residual (CCR) from the Marion Power Plant into seven ponds and a landfill on the 

plant’s site since 1963.171, 172 Only one of the seven ponds is lined. The approximately 1.1 million cubic 

yard landfill, located between two forks of the Saline Creek, is also unlined. The plant lies about eight 

miles south of Marion, in a rural area of Illinois.173 Groundwater monitoring has been required in the 

vicinity of the landfill and ponds since 1994, and high concentrations of cadmium were first detected in 

 

170 According to Leonard Hopkins/SIPC (2011), Southern Illinois Power Cooperative is a small Generation & 

Transmission System, a not-for-profit corporation defined as a “Small Business” by the U.S. Small Business 

Administration. It serves approximately 250,000 people and businesses located in the southernmost twenty-two 

counties of Illinois. According to DCEO (2010), in 2009, close to 89% of the plant’s fuel was derived from open-pit 

and underground Knight Hawk Coal Company’s coal mines in Jackson and Perry Counties, Illinois. According to 

http://www.isgs.uiuc.edu/maps-data-pub/coal-maps.shtml and http://www.knighthawkcoal.com/index.html, the 

bituminous coal contains between 1.3% and 3.2% sulfur and its calorific values range between 11,000 and 11,800 

BTU/lb.

171 Major CCR types are coal fly ash, bottom ash, and (since the late 1970s) flue gas desulfurization (FGD) sludge. 

According to SIPC (2012) and Sourcewatch (2010), SIPC’s Baseload capacity is provided by two coal-fired boilers. 

In 2003, SIPC replaced three aging small boilers (Units 1-3: 1963 vintage, 33 MW each) with one 120 MW 

circulating fluidized bed boiler. Capable of burning a variety of fuels, it is currently fueled with locally available 

mine waste. The second unit (originally, Unit 4) comprises a 173 MW coal-fired unit, which came online in 1978. 

This unit has been equipped from the outset with a wet scrubber, and since 2003, also with a selective catalytic 

reduction technology.

172 According to Marion Plant’s Response to EPA’s Information Request (2011), there are actually 11 discrete, 

active surface impoundments, with a total capacity of 411 acre-feet: seven were commissioned in 1976, one – in 

1988, one- in 1992, and three – in 1996. They range from the large South Fly Ash Dam and Pond S-1 (103 acre-feet 

and 71 acre-feet, respectively), to the small Pond S-6 and Pond 1 (16 acre-feet and 9 acre-feet, respectively). Most 

ponds are designated for the disposal of fly ash and/or flue gas emission control residuals, whereas Ponds 1 and 2 

are designated for the storage of bottom ash/boiler slag, ultimately removed for beneficial use.

Kleinfelder (2013) inspected the bottom ash Ponds 1, 2, and 4, claiming that (i) all were commissioned in 

1963, (ii) the presence of a liner is ‘unknown’, (iii) their pool areas are 1.75 acre, 2 acre, and 4.2 acre, respectively, 

and (iv) their storage capacities are (in acre-feet) 9, 15, and 55, respectively. Bottom ash Ponds 1 and 2 act as a 

primary settling basin for bottom ash prior to the water being transferred into Pond 4, which acts as a final 

clarification pond, and then being released into Little Saline Creek. Currently the bottom ash residual produced at 

the facility is removed from Ponds 1 and 2, and then sold to various organizations for beneficial use such as roof 

shingle sand.

Kleinfelder (ibid) did not asses the following ponds: South Fly Ash Pond, Fly Ash Disposal Pond B-3, 

Pond A-1, Pond S-1, Pond 3A, Pond 3, Pond S-6, Pond S-2, and Pond S-3. For locations of all ponds, see Figure 2 

in Kleinfelder (2013). 

173 SIPC created the Lake of Egypt in 1962, by damming the South fork of the Saline River, a tributary of the Ohio 

River, to supply cooling water for the Marion electric power plant. Located six miles south of Marion, Illinois, it 

covers 2,300 acres with 90 miles of shoreline. The lake is used extensively for recreational purposes 

(http://www.sipower.org/p/map.pdf). The spillway elevation of the dam for Lake of Egypt located just east of the 

Marion plant is 500 feet. 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

52

1997; however, no offsite monitoring data is available. SIPC also disposes of some CCR offsite.174 The 

plant has a National Pollutant Discharge Elimination System (NPDES) permit.175

The Marion area is situated near the southern margin of the Illinois Basin, where bedrock strata dip north 

at less than one-degree.176, 177 Most of SIPC’s ash ponds are located in upland positions a little above or 

below 500 feet asl. The CCR landfill is located at an elevation of about 460 feet in the floodplain between 

the confluence of Saline Creek and South Fork Saline Creek. The uplands that confine the floodplain are 

mantled by rather thin glacial Quaternary deposits, mainly glacial drift and wind-blown silt (loess).178

These surficial deposits overlie the Pennsylvanian-age Tradewater Formation,179 comprising primarily 

sandstone. In the southern two-thirds of Illinois, thin sandstone and limestone beds of Pennsylvanian age 

and sandstone and limestone formations of Mississippian age yield small quantities of groundwater. 

Although wells in these rocks commonly yield less than 25 gpm, they are the only source of water for 

many domestic and small municipal and industrial supplies.180 According to Gibb (1973), the 

groundwater yield potential of shallow bedrock formations in Williamson County is estimated to be less 

than 5 gpm.

Impact and Damage Claims: EIP (2010a) indicates that groundwater monitoring (which only looked 

for boron cadmium, iron, and sulfate) showed multiple instances of onsite contamination. The 2004 to 

2009 average concentrations of cadmium were found above the Illinois Class I Groundwater Standard 

(0.005 mg/L)181 in six of eight monitoring wells, with maximum concentrations up to between 10-18 

times the federal MCL. The two wells with the highest average concentrations of cadmium (3-4 times the 

MCL) are adjacent to Saline Creek and discharging into it.

EIP (2010a) also notes that iron exceeded the secondary EPA MCLs (SMCLs) and the Illinois Class I 

Groundwater Standard in most sampling events. Some relatively higher concentrations of iron were 

 

174 According to Barbara L. McKasson’s comment to the proposed CCR rule docket: EPA-HQ-RCRA-2009-0640-

11555 ((Louisville, KY, Public Hearing), the offsite locations include: (i) an abandoned strip mine north of the 

Williamson County Regional Airport, which lacks a monitoring well, liner and state regulation or monitoring. (ii) 

Near Lake of Egypt, SIPC is dumping CCR into a small lake it drained. “A farmer said that when it rains, water 

drains off of that lake onto his adjacent field where he grazes cattle.”

175 Permit No. IL0004316.

176 Jacobson et al., (1991); Nelson (2007).

177 Follmer and Nelson (2010).

178 According to USDA (2009), the glacial drift, which is about 150,000 years old, is thin, and the topography is 

generally controlled by the underlying bedrock of Pennsylvanian age. According to Follmer and Nelson (2010), the 

Glasford Till, comprising two facies: (i) silty clay loam diamicton (sediment that consists of a wide range of nonsorted to poorly sorted terrigenous sediment, i.e. sand or pebbles that are suspended in a mud matrix) that varies 

from pebbly, silty clay to silt loam diamicton; very few pebbles in places; fabric is compact and uniform. Underlies 

most of the gently rolling hills of the county; variable thickness ranging from a veneer of a few feet to over 100 feet 

thick in buried valleys; (ii) ablation (the erosive processes by which a glacier is reduced) deposits; water transported 

and glacial debris-flow deposits with soft-sediment deformation features; likely contains gravel at the base and 

overlies dense basal till where glacial deposits are thick; largely restricted to discontinuous terrace levels (localized 

level areas) across the uplands at elevations from 420 up to 550 feet; formed on the Illinoian glacier after stagnation; 

temporary ice-walled lakes accumulated sediments that formed terraces now buried by loess. According to USDA 

(2009), the thickness of the loess on stable summits in Williamson County ranges from 4 to 5 feet to just over 12 

feet.

179 According to Nelson and Weibel (1996), The Tradewater consists of lithic arenite inter-bedded with shale, 

siltstone, and thin coal. Maximum thickness of the Tradewater is about 300 feet; its top is eroded.

180 Visocky et al., (1983).

181 This standard is equivalent to the Federal Maximum Contaminant Level (MCL).
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

53

recently found in two of the wells, which the SIPC attributes to rusting well covers. EIP (2010a) also 

notes that sulfate occasionally exceeded the EPA SMCL and boron occasional exceeded the Illinois Class 

I Groundwater Standard (2.0 mg/L) since monitoring began. There are three wells within a one-mile 

radius of the CCR disposal areas, but their exact locations – including how many wells are down-gradient 

of the site, are unknown.

According to the Illinois Environmental Protection Agency (IEPA),182 The Agency has groundwater 

monitoring well sampling data from eight sampling events ranging from January 2007 to November 2008 

that indicate elevated cadmium and iron concentrations. SIPC renovated (repaired and cleaned out) their 

monitoring wells in 2010 and replaced two monitoring wells. Groundwater sampling reports at their 

monitoring wells from five sampling events ranging from June 2010 through June 2011 confirmed 

elevated levels of boron and iron with one detection of cadmium that has not been confirmed since well 

renovation. Elevated iron may also be due to a nearby coal mined area.

EIP (2010a) notes that the wells with the most significant contamination are those which lie between the 

CCR sites and Saline Creek, to which the shallow groundwater discharges.183 It also notes that effluent 

samples from one ash pond which has an NPDES permitted discharge into the creek indicated aluminum 

over the EPA Ambient Water Quality Criteria (AWQC), as well as boron over the EPA’s criteria for 

sensitive crop irrigation.184 According to IEPA,185 aluminum has no water quality standard or derived 

water quality criterion in Illinois. Many states do not have an aluminum standard because only dissolved 

aluminum is a concern for aquatic life and dissolved aluminum does not occur at levels of concern unless 

a very low pH is present. 

According to IEPA,186 a query run for the last five years of discharge data does not indicate any discharge 

limit exceedances of aluminum or boron in the surface water. During the same time period, there were 

five exceedances of TDS, one exceedance of iron, one exceedance of copper, and two exceedances of oil 

and grease. 

Evaluation against Proven Damage Criteria187

 

182 Feedback from Richard P. Cobb, Deputy Manager, Division of Public Water Supplies, IEPA, on September 1, 

2011, in response to EPA’s Region 5 follow up on citizen concerns raised in the 2010 Louisville and Charlotte CCR 

proposed rule Public Hearings (forwarded on September 27, 2011 by J. Gevrenov, EPA R5, to A. Livnat, 

EPA/OSWER)

183 EIP (2010a) concedes that there does not appear to be any sampling to determine actual impacts of the discharges 

on Saline Creek.

184 According to EIP (2010a), USEPA’s boron surface-water criteria for the protection of sensitive crops by longterm irrigation is 0.75 mg/L.

185 Feedback from Richard P. Cobb, ibid.

186 Feedback from Richard P. Cobb, ibid.

187 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 

 Onsite groundwater data exceeded the primary EPA MCL 

for cadmium. 

 Onsite groundwater data exceeded the EPA SMCLs for 

iron and sulfate, and the Illinois Class I Groundwater 

Standard for iron and boron.

 No offsite groundwater data are available. 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

54

Other Considerations: While EPA AWQCs were exceeded in the effluent, there is no indication of 

NPDES criteria exceedance.

Resolution: Based on findings of elevated boron, cadmium and iron above Illinois Class I Groundwater 

Standards, IEPA asked SIPC to submit a “hydrogeologic assessment plan” to determine the source and 

extent of elevated iron and cadmium contamination at the site. IEPA approved a plan that includes 

measures to refurbish seven existing wells and replace two groundwater monitoring wells that have been 

out of service, but the plan does not require groundwater monitoring for parameters other than boron, 

cadmium, iron and sulfates.

SIPC surface water concerns are given in the PRN document as boron and aluminum. SIPC obtained a 

boron-adjusted water quality standard in the 1990s from the Illinois Pollution Control Board (IPCB) for a 

long segment of the receiving stream. Still, SIPC apparently does not meet the boron permit limits 

dictated by the adjusted standard every month. The new boron WQS does not remove concerns at this site 

because the ‘relief’ is set at a higher concentration than the new chronic WQS. SIPC participated in the 

current rulemaking and it is yet to be determined what if anything the IPCB will do with the existing 

adjusted standard. In 2009 (?), IEPA approved a plan that includes measures to refurbish seven existing 

wells and replace two groundwater monitoring wells that have been out of service, but the plan does not 

require groundwater monitoring for parameters other than boron, cadmium, iron, and sulfates.

188

According to IEPA,189 SIPC’s impoundments straddle areas ranging between Low to Moderately High 

Potential for Aquifer Recharge, and further assessment of groundwater impacts is underway. 

USWAG claims that this site does not qualify as a damage case.190

 

188 EIP (2010a), citing a 2010 IEPA letter.

189 IEPA’s Ash Impoundments Strategy Progress Report (October 2011).

190 USWAG comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211): “Illinois EPA requested the 

site owner to prepare a hydrogeologic assessment plan to determine the source and extent of elevated manganese 

and cadmium concentrations at the site. There are no other citations or information related to regulatory actions 

provided in the Reference Document (EIP 2010a) concerning alleged off‐site impacts to groundwater or surface 

water.

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 allegation in the reference claims that there are off‐site groundwater 

exceedances, but there is no off‐site groundwater quality data provided. The monitoring well referenced as being 

located off‐site is within the property boundary of the Site.

In addition, this case does not meet the criteria for a damage case to surface water because there are no surface water 

sample data provided from Saline Creek. Water samples were collected from an outfall effluent sample from the ash 

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)

 Effluent samples from a pond which discharges to the 

Saline Creek indicated aluminum over the EPA AWQC 

and boron over the EPA’s criteria for sensitive crop 

irrigation. 

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 I (Cases 1-32) December 2014

55

ICF (2010) Rationale:

191 Potential Damage. <Groundwater exceedances of the primary EPA MCL for 

cadmium and the SMCL for iron and sulfate have been found onsite. While there were exceedances in the 

effluent which discharges into surface water, there is no study with a specific finding 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 #9, 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 #9. ICF, 10/2010.

US EPA, Facility Registry System, Facility Detail Report, Southern Illinois Power – Marion. Accessed 

Online October 2010. 

http://iaspub.epa.gov/enviro/fii_query_dtl.disp_program_facility?p_registry_id=110017420049

IEPA’s Ash Impoundments Strategy Progress Report (October 2011). Accessed Online December 2012. 

http://www.epa.state.il.us/water/ash-impoundment/documents/ash-impoundment-progress-102511.pdf

SIPC (2012): Southern Illinois Power Cooperative. Accessed Online December 2012. 

http://www.sipower.org/p/aboutsipc_history.php 

Sourcewatch (2010): Marion Plant. Accessed Online December 2012.

http://www.sourcewatch.org/index.php?title=Marion_Plant

Leonard Hopkins/SIPC (2011): Testimony before the House Energy & Commerce Committee, 

Subcommittee on Environment and the Economy, “Environmental Regulations, the Economy, and Jobs”, 

Leonard Hopkins, Fuel & Compliance Manager for Southern Illinois Power Cooperative - – February 15, 

2011. Accessed Online December 2012.

http://www.nreca.coop/press/Testimony/Documents/TestimonyLeonardHopkinsHouseEnergyCommerce

Subcommittee.pdf

DCEO (2010): The Illinois Coal Industry, Report of the Department of Commerce and Economic 

Opportunity Office of Coal Development, June 2010. Accessed Online December 2012. 

http://www.ildceo.net/nr/rdonlyres/8e622cbc-2a9e-428a-9a0eefa1ec8a7ae2/0/coalindustry2010outline.pdf 

Marion Plant’s Response to EPA’s Information Request (2011): Information Request Regarding Surface 

Impoundments at the Marion Plant, January 5, 2011. Accessed Online December 2012.

 

ponds, which is regulated by an NPDES Permit and have no bearing on actual surface water quality in Saline 

Creek.”

191 Based on a telephone Conversation with Bill Buscher, Illinois Environmental Protection Agency, Bureau of 

Water, October 21, 2010.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

56

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/soil-power-coop-marion-plant.pdf

Nelson (2007): Bedrock Geology of Marion Quadrangle, Williamson County, Illinois, W. John Nelson, 

Illinois State Geological Survey, Illinois Geologic Quadrangle Map IGQ Marion-BG, 2007, 1:24,000. 

Accessed Online December 2012.

http://www.isgs.illinois.edu/maps-data-pub/isgs-quads/m/pdf-files/marion-bg.pdf

Jacobson et al., (1991): Geologic Map of the Goreville Quadrangle, Johnson and Williamson Counties, 

Illinois, Russell J. Jacobson, with contributions by H.H. Damberger and C.B. Trask, Illinois State 

Geological Survey, Illinois Geologic Quadrangle Map IGQ-7, 1991, 1:24,000. Accessed Online 

December 2012.

http://www.isgs.illinois.edu/maps-data-pub/isgs-quads/g/pdf-files/goreville.pdf

Follmer and Nelson (2010): Surficial Geology of Marion Quadrangle, Williamson County, Illinois, Leon 

R. Follmer and W. John Nelson, Illinois State Geological Survey, Illinois Geologic Quadrangle Map IGQ 

Marion-SG, 2010, 1:24,000. Accessed Online December 2012.

http://www.isgs.illinois.edu/maps-data-pub/isgs-quads/m/pdf-files/marion-sg.pdf

Nelson and Weibel (1996): Geology of the Lick Creek Quadrangle, Johnson, Union, and Williamson 

Counties, Southern Illinois. W. John Nelson and C. Pius Weibel, Department of Natural Resources, 

Illinois State Geological Survey, Bulletin 103, 1996. Accessed Online December 2012.

http://library.isgs.uiuc.edu/Pubs/pdfs/bulletins/bul103.pdf

Gibb (1973): Planning a Domestic Groundwater Supply System, James P. Gibb, Circular 116, State of 

Illinois Department of Registration and Education, Illinois State Water Survey, Urbana, 1973. Accessed 

Online December 2012.

http://webh2o.sws.uiuc.edu/pubdoc/C/ISWSC-116.pdf

Visocky et al., (1983): Assessment of Public Groundwater Supplies in Illinois, A. P. Visocky, H. A. 

Wehrmann, and K. W. Kim, Circular 144, State of Illinois, Illinois Institute of Natural Resources, Illinois 

State Water Survey, Urbana, 1980. Accessed Online December 2012.

http://www.isws.illinois.edu/pubdoc/C/ISWSC-144.pdf

USDA (2009): Soil Survey of Williamson County, Illinois, United States Department of Agriculture, 

Natural Resources Conservation Service, in cooperation with Illinois Agricultural Experiment Station, 

2009. Accessed Online December 2012.

http://soildatamart.nrcs.usda.gov/manuscripts/IL199/0/Williamson_IL.pdf

Kleinfelder (2013): Coal Ash Impoundment Site Assessment Final Report, Marion Power Station,

Southern Illinois Power Cooperative, Marion, Illinois, Kleinfelder, Project Number 118953-5, February 

28, 2013. Accessed Online April 2013.

http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys2/sipc_marion_final.pdf
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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PTb11. Venice Power Station, Union Electric Company/Ameren Energy – AmerenUE, 

Venice, St. Clair and Madison Counties, Illinois192

Type: Surface Impoundments.

Background and Description: The Venice Power Plant was a 500-MW coal burning plant from its 

inception in 1942 until it converted to burning oil in the late 1970s. The plant, located on the east bank of 

the Mississippi River, lowered capacity in the 1980s but was reconditioned and reopened in 1995. Its 

current operator, AmerenUE, was formed in 1998 by the merger of Union Electric and Illinois Public 

Service. Three additional generating units came online in 2005 and are used sporadically as a peak load 

facility. A series of three unlined ash ponds was constructed in the 1950s and received sluiced coal 

combustion residual (CCR) from the plant as well as wastewater from the boilers and water treatment 

plant.193 The ponds stopped receiving CCR in 1977 when the plant switched to oil, but continued to 

receive process wastewater until 2005.194 Authorization for operation of the ash ponds continued until 

expiration of the facility’s Water Pollution Control Permit (No. 2005-EO-3215) on January 21, 2010. 

There are approximately 1,425,500 cubic yards of CCR located within the ash pond system. Borings 

indicate that the base of the ash is at an elevation of about 400 feet AMSL. Based on a review of 

groundwater monitoring well data conducted by Natural Resources Technology (NRT), AmerenUE’s 

consultant, ash is in contact with the groundwater during high water river stages that typically occur 

approximately 15 percent of the time.195

Beginning in 2004, AmerenUE installed three additional combustion turbine generating units (CTGs) at 

the Venice plant site. To both accommodate the CTGs and dewater the ash pond system, AmerenUE 

constructed a storm water and wastewater treatment system. As a result, all discharges into the ash pond 

system were eliminated, and the ash pond system has been completely isolated since 2005. The water 

table beneath the ponds and the amount of saturated ash has dropped considerably since that time.196

Ponds 2 and 3, located at the very southern end of the power Station’s site, were designated for closure in 

2011 by capping with a synthetic liner, with the CCR left in place.197

The plant lies near the City of Venice and Village of Brooklyn (just across the River from St. Louis, 

Missouri),198 both of which prohibit the use of groundwater as a potable water supply because preexisting and current industrial facilities in the area, including the Venice Power Plant, provide multiple 

potential sources of contamination. 

 

192 According to Sourcewatch (2012), the Ameren Energy Venice Power Station in Madison and St. Clair counties is 

the ‘now retired’.

193 For a detailed site facility air photo and adjacent jurisdictional boundaries, see 

http://www.epa.state.il.us/water/ash-impoundment/ameren-venice-station/ash-pond-plot.pdf

194 AmerenUE (2010). A new water treatment facility and outfall constructed in 2005 is subject to NPDES Permit # 

IL0000175.

195 AmerenUE (2010).

196 Ibid.

197 NRT (2010b) and NRT (2010c). According to AmerenUE (2010), the ash pond system was constructed in the 

early 1950s in conjunction with the flood levee system on the banks of the Mississippi River. The western berm 

(approximately 1,100 feet) of the ash ponds forms the dike that is part of the U.S. Army Corps of Engineers flood 

levee system. As such, it cannot be structurally compromised. The combined area of Ponds 2 and 3 is 58 acres 

(http://www.ameren.com/Environment/Documents/AshPondListingAER.pdf)

198 For a general location map, see 

http://www.ameren.com/sites/aue/MyBusiness/UEW/Documents/AU_FactSheet.pdf
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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The ash pond system is underlain by about 80 feet of alluvial deposits associated with the Mississippi 

River. The upper 20 to 30 feet of alluvium contain alternating layers of silt, sand, and clay. The lower 50 

to 60 feet consist primarily of sand and gravel. Groundwater flow in the region is controlled by the 

Mississippi River. Groundwater is typically encountered at a depth of 20 to 30 feet. During normal river 

stage, which lasts the majority of the year, groundwater flows west and discharges into the river. During 

high river stage, groundwater flow is reversed, flowing east, with the river recharging the aquifer. There is 

also a perched water table that is influenced by infiltration of precipitation that tends to dilute the 

concentrations of contaminants from the ash pond system in the shallower wells. 

Impact and Damage Claims: EIP (2010a) indicates that groundwater monitoring showed multiple 

instances of contamination in groundwater. Arsenic and boron exceeded the MCL and SMCL, 

respectively, in the first round of groundwater sampling on July 27, 1996. When monitoring wells MW4, 

MW5, and MW6 were added to the network in December 1997, arsenic and boron also exceeded Illinois 

Class I groundwater standards in all three wells.

Arsenic concentrations exceeded the primary EPA Maximum Contaminant Level (MCL) at a number of 

wells, including two wells which are about 400 feet east of the ponds and ‘off the plant property’.

199 EIP 

(2010a) also noted exceedances of the Illinois Class I Groundwater Standard for boron at a number of 

wells, though all onsite. 200 A brief exceedance of the primary EPA MCL for cadmium was reported at 

one of the wells, as well as secondary EPA MCL (SMCL) exceedances for iron, manganese, and total 

dissolved solids (TDS) in a number of wells onsite, and one of the offsite wells for iron. 

A Hydrogeological Assessment undertaken by NRT201 determined that lack of boron and arsenic 

correlation in the wells and the fact that leachate samples from the ash ponds have lower arsenic than the 

groundwater indicate that the ash ponds are not the primary source of arsenic in groundwater. The 

assessment also determined that even simulating the seasonal fluctuation of the river, the offsite wells 

where arsenic was found above the MCL would be considered up-gradient, further indicating that the ash 

ponds are not the primary source of arsenic.

EIP (2010a) counters that differences in how boron and arsenic interact with the aquifer would allow for 

little correlation between the two in individual samples. It also notes, and NRT (2010a) concurs (page 4), 

that seasonal water stage fluctuation in the Mississippi River would cause changes in the groundwater 

flow gradient and that during the high river stage the two offsite wells to the east could be down-gradient 

from the pond system. It also notes that while boron did not exceed a standard in the offsite wells, it was 

elevated and could indicate these wells were affected by the ash ponds.202

 

199 The contaminant plume of arsenic that exceeds Class I standards extends beyond the boron plume (up to x38 the 

federal MCL), 400 feet beyond the inactive impoundments.

200 The contaminant plume of boron, that exceeds Illinois Class I (potable) groundwater standards, extends 475 feet 

south of the inactive impoundments.

201 NRT (2010d).

202 According to EIP (2010a), several lines of evidence suggest that the ash ponds are the main source of arsenic, 

and that off-site monitoring wells MW8 and MW9 are not truly up-gradient (as claimed by NRT, apparently on the 

assumption that the dominant direction of groundwater flow is west, toward the river) and are affected by 

contaminants from the ash ponds: 

• Boron tends not to interact with aquifer solids and serves as a good indicator of the zone of influence of ash 

leachate on groundwater. Arsenic, on the other hand, is sensitive to redox conditions in the ash pore waters and 

aquifer, so a correlation between arsenic and boron in the same sample would not necessarily be expected. 

• In Pleistocene aquifers, groundwater containing boron concentrations greater than 0.5 mg/L can be considered 

affected by leachate (Schleyer et al., 1992). In MW8, the average concentration of boron in samples taken from 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

59

The NRT assessment concluded that boron and manganese onsite were higher than the Illinois Class I 

Groundwater Standards (and SMCL for manganese) and would be attributable to the coal ash ponds. The 

assessment also concluded that other contaminants, including arsenic, iron and TDS would not be 

attributable to leachate from the ash ponds; for arsenic, creosote wood treatment plants formerly located 

up-gradient of the monitoring wells area, cannot be excluded as potential sources.203

Evaluation against Proven Damage Criteria204

Resolution: When the Venice Plant resumed operations in 1995, a condition for the operating permit 

was that hydrogeologic investigations be initiated to evaluate the impact of the ash pond system on 

groundwater. These investigations were initiated in 1996 with the installation of three monitoring wells, 

and the monitoring well network was eventually expanded to include 17 monitoring wells at varying 

depths and locations in and around the ash pond system.205

 

1999 to 2009 was 0.68 mg/L and more recent sampling in MW8P averaged 1.48 mg/L, suggesting that this well, 400 

feet “up-gradient,” has been affected by the ash ponds. 

• This influence can be explained by the fact that when the Mississippi River is at a high stage, the groundwater 

gradient to the east is much steeper (river was 8.34 feet higher than MW8 on July 26, 2008) than when the river is at 

normal flow (river 3.93 feet lower than MW8 on September 26, 2008), making it entirely possible for contaminants 

to reach these wells and farther east before the lower westward gradient is reestablished. 

• The interpretation that the dominant direction of the flow of contaminants is to the east rather than the west is 

confirmed by the fact that the monitoring wells set between the ash ponds and the river (MW2 and MW3) has lower 

average concentrations of arsenic and boron than the wells east of the ash ponds (MW4 and MW5).

203 NRT (2010).

204 ICF (2010a).

205 According to AmerenUE (2010), the three well groundwater monitoring network installed in 1996 was expanded 

to 17 monitoring wells: wells 7 and 7P were installed to monitor off-site impacts to the south. Wells 2, 2P and 3 are 

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels (MCLs) 

or other health-based standards measured in 

groundwater at sufficient distance from the 

waste management unit to indicate that 

hazardous constituents have migrated to the 

extent that they could cause human health 

concerns

 Onsite groundwater data exceeded the primary EPA 

MCLs for arsenic and cadmium.

 Onsite groundwater data exceeded EPA SMCLs for 

iron, manganese, and TDS, as well as the Illinois Class I 

Groundwater Standard and EPA Child Health Advisory 

for boron.

 Offsite groundwater data exceeded the primary EPA 

MCL for arsenic and the SMCL for iron. Other sources 

of arsenic, such as creosote wood treatment plants 

formerly located upgradient of the monitoring wells 

area, cannot be excluded.

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 I (Cases 1-32) December 2014

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In March 2010, as part of the plan for final closure of the impoundments, AmerenUE proposed final 

capping and a “Groundwater Management Zone” (GMZ) to contain contaminant plumes within the 

property, which extend 450 feet south from the impoundments, covering all boron exceedances.206

However, it does not cover the two offsite wells where arsenic exceeded the primary EPA MCL.

The groundwater GMZ was approved for this site to limit recharge through the contaminants leaching to 

groundwater by capping the impoundments with a low permeability synthetic membrane.207 The well 

inventory required by IEPA and completed by Ameren confirms that there is no use of groundwater for 

potable or industrial uses down-gradient of the impoundments. In addition, IEPA concluded that because 

the area just south of the plume will be beneath the proposed I-70 bridge, virtually eliminating any 

potential use of the groundwater, contaminated groundwater will not be pumped to control migration. The 

contaminated groundwater will slowly discharge into the river by subsurface seepage. AmerenUE 

determined that the concentration of boron that would enter the river through seepage would be 0.0019 

mg/L, which is protective of human health and aquatic life.208 At the end of October 2012, Ameren 

notified IEPA that it has concluded the closure of the Plant’s inactive ash pond system.

209

USWAG claims that this site does not qualify as a damage case.210

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

arsenic and cadmium, the EPA SMCL for iron, manganese, and TDS, and the Illinois Class I 

Groundwater Standard for boron have been found onsite. While offsite groundwater data exceeded the 

 

located near the river bank to the east, and wells 8 and 9 are located off-site on railroad property to the west. 

Additional wells are installed along the perimeter of the ash ponds (MW 1, 4, 5, 5P, 6), and within the basins (MW 

AP-1, AP-1A, and AP-2). AmerenUE performs groundwater sampling on a quarterly basis and has submitted 

monitoring results to IEPA since 1996. Arsenic, barium, boron, cadmium, chromium, copper, lead, manganese, 

nickel, zinc, pH, and TDS have been monitored since 1996. And see NRT (2010).

206 See AmerenUE (2010a). For a series of technical Memoranda related to the closure plans, see 

http://www.ameren.com/Environment/Pages/ManagingWaste.aspx.

207 According to Ameren (2014), a GMZ was approved on May 6, 2011. 

208 NRT (2010a).

209 Ameren (2014a).

210 Comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211): “The allegations are for on‐site and 

off‐site groundwater exceedances of CCRs above health‐based standards. The alleged off‐site groundwater 

exceedances of groundwater standards are specifically for arsenic, boron, iron, and manganese. Evaluation of the 

data has demonstrated that the ash impoundment is not a significant source of arsenic and that elevated arsenic 

concentrations may be from other sources, including historic industrial activities that used arsenic‐based compounds 

such as wood treatment facilities. The documentation that the source of arsenic is from a source other than the ash 

ponds has been demonstrated to the Illinois EPA’s satisfaction2. It has also been documented that there are off‐site 

sources (both anthropogenic and natural) resulting in elevated concentrations of iron, manganese, and Total 

Dissolved Solids in groundwater unrelated to CCRs. (Natural Resources Technology. 2010. Supplemental 

Hydrogeological Assessment, Venice Ash Ponds, Technical Memorandum No. 2, March 3, 2010).

Boron concentrations in off‐site monitoring wells located upgradient from the site do not exceed 

groundwater standards; reported exceedances in an off‐site well located south of the site and downgradient of the 

impoundment were observed where the groundwater flow system intercepts the Mississippi River.1 A synthetic cap 

is proposed for the site, there is a local groundwater ordinance in place restricting the use of groundwater, and the 

only downgradient receptor is the Mississippi River. There is no potential for groundwater transport of CCR‐related 

constituents to human receptors. The Illinois EPA is overseeing closure activities at the site (Written 

communications, AmerenUE. November 1 and 3, 2011.)”
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

61

primary EPA MCL for arsenic, these (and other) offsite exceedances could not be directly attributed to 

the coal ash ponds. 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 #10, 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 #10. ICF, 10/2010.

NRT (2009): Potable Well Survey, Hydrogeologic Assessment, and Modifications to the Groundwater 

Monitoring Program, Venice Ash Impoundment, Hennings, Brian and Hensel, Bruce, Natural Resource 

Technology, Technical Memorandum No. 1, September 17, 2009. Accessed Online May 2012.

http://www.epa.state.il.us/water/ash-impoundment/ameren-venice-station/tech-memo1.pdf

NRT (2010): Supplemental Hydrogeological Assessment, Venice Ash Ponds, Hennings, Brian and 

Hensel, Bruce, Natural Resource Technology, Technical Memorandum No. 2, March 3, 2010. Accessed 

Online May 2012.

http://www.epa.state.il.us/water/ash-impoundment/ameren-venice-station/tech-memo2.pdf

NRT (2010a): Boron Loading to the Mississippi River from Venice Ponds 2 and 3, Natural Resource 

Technology, Technical Memorandum No. 3, Bruce Hensel, March 3, 2010. Accessed Online May 2012.

http://www.epa.state.il.us/water/ash-impoundment/ameren-venice-station/tech-memo3.pdf

NRT (2010b): Evaluation of Closure Alternatives, Venice Ash Ponds, Natural Resource Technology, 

Technical Memorandum No. 4, Eric Tlachac and Bruce Hensel, March 12, 2010. Accessed Online May 

2012.

http://www.epa.state.il.us/water/ash-impoundment/ameren-venice-station/tech-memo4.pdf

NRT (2010c): Predicted Change in Percolation, Venice Ash Impoundment, Natural Resource 

Technology, Technical Memorandum No. 5, Bruce Hensel, March 12, 2010. Accessed Online May 2012.

http://www.epa.state.il.us/water/ash-impoundment/ameren-venice-station/tech-memo5.pdf

NRT (2010d): Groundwater Modeling of Venice Former Ash Ponds, Hennings, Brian and Hensel, Bruce, 

Natural Resource Technology, Technical Memorandum No. 6, March 12, 2010. Accessed Online May 

2012.

http://www.epa.state.il.us/water/ash-impoundment/ameren-venice-station/tech-memo6.pdf 

IEPA’s Ash Impoundment’s Strategy website (2011): Illinois Environmental Protection Agency, Ash 

Impoundment Strategy, AmerenUE Venice Station Ash Pond Closure. Accessed Online May 2012.

http://www.epa.state.il.us/water/ash-impoundment/ameren-venice-station/index.html 

Schleyer et al., (1992): Schleyer, Ruprecht, Helmut Kerndorff, and Gerald Milde: Detection and 

Evaluation of Groundwater Contamination Caused by Waste Sites, in Suzanne Lesage and Richard E. 

Jackson (eds.), Groundwater Contamination and Analysis at Hazardous Waste Sites, CRC Press 273–91.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

62

AmerenUE (2010): Ash Pond Closures at AmerenUE’s Venice Plant. Ameren Environmental Services, 

submitted to Bill Buscher, Illinois Environmental Protection Agency, Groundwater Protection, Division 

of Water Pollution Control, March 25, 2010. Accessed Online December 2012.

http://www.epa.state.il.us/water/ash-impoundment/ameren-venice-station/pond-closure.pdf

AmerenUE (2010a): Pending Proposal for Groundwater Management Zone, submitted to Bill Buscher, 

Illinois Environmental Protection Agency, Groundwater Section, Division of Public Water Supplies, 

August 3, 2010. Accessed Online December 2012.

http://www.epa.state.il.us/water/ash-impoundment/ameren-venice-station/gmz-proposal.pdf

Sourcewatch (2012): Ameren, web page last updated 20 August, 2012. Accessed Online August 2014.

http://www.sourcewatch.org/index.php/Ameren#cite_note-tb-38

Ameren (2014): IEPA Approval of the Venice Ash Pond Closure Plan and Groundwater Management 

Zone (GMZ)/Pond Information/Venice Ash Ponds, 2014. Accessed Online August 2014.

https://www.ameren.com/Environment/Pages/ManagingWaste.aspx

Ameren (2014a): Notification to the IEPA of Completion of Ash Pond Closure at Venice/Pond 

Information/Venice Ash Ponds, 2014. Accessed Online August 2014.

https://www.ameren.com/Environment/Documents/HutsonvillePondDClosure.pdf

PTb12. Clifty Creek Station, Indiana Kentucky Electric Corporation (IKEC),211 Madison, 

Jefferson County, Indiana

Type: Landfill Over a Former Pond (an Overfill) and Surface Impoundments.

Background and Description: The 1,302 MW Clifty Creek power plant, with six separate generation 

units of 217 MW each was built in 1955/56 on the Ohio River, directly beside the Clifty Falls State Park 

and between the cities of Madison and Hanover, Indiana. Along with the power plant, the site contains a 

CCR landfill and two surface impoundments. The impoundments comprise the active, 58 acre, 3,600 

acre-feet capacity, West Boiler Slag Pond, and the South Fly Ash Pond that is currently used for 

stormwater management. The West Boiler slag pond’s actual contained slag volume is small because 

most of the slag is sold for beneficial use or used for structural fill onsite.212 The impoundments have an 

NPDES permit for discharges to the Ohio River. Under Indiana regulations, any impoundment with an 

NPDES permit is exempt from solid waste standards. The impoundments do not have liners or ground 

water monitoring. 

In the northern-most region of the former South Fly Ash Pond, an unlined Type III restricted waste 

(CCR) landfill, was constructed in 1992 on top of a closed impoundment as the facility began to process 

dry fly ash as well as boiler slag. In December 2002, The Indiana Department of Environmental 

 

211 Formed to provide electric power requirements for the Atomic Energy Commission's Portsmouth (Ohio) Area, 

IKEC has been a subsidiary of Ohio Valley Electric Corporation since October, 1952. The Plant burns 14,000 tons 

of coal per day (4.5 million tons a year). Over 1.4 billion gallons of Ohio River water cycle through the plant daily 

to condense the steam and return to the river:

http://www.roundaboutmadison.com/InsidePages/ArchivedArticles/2006/0706IKEC.html

212 IKEC (2009).
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Management (IDEM) approved a permit for the construction of a Type I Restricted waste landfill on top 

of this existing landfill. In 1994, IDEM approved a pH Variance for the disposal of low-sulfur coal ash in 

the fly ash landfill. Emplacement of low-sulfur coal ash in the landfill began in January 1995 and has 

continued to date.213 The landfill is located along the Ohio River, approximately 0.6 to 1.5 miles upstream 

from supply well fields operated by the Kent Water Company in Hanover and Kent, Indiana and 0.5 to 

three miles downstream from supply well fields used by the city of Madison, Indiana.214

In anticipation of newly installed scrubbers (2010), in 2009-2010 the landfill was redesigned to be 

permitted as a Type I landfill, to accept flue gas desulfurization (FGD) gypsum along with the dry fly 

ash.215, 216 The landfill has three onsite down-gradient monitoring wells and one well located within the 

old fly ash impoundment. No offsite groundwater monitoring data is available. 

The impoundments and landfill are sited over 50 feet of valley fill materials (inter-bedded alluvium, silt, 

and gravels). The South Fly Ash Pond is located in an abandoned valley that is separated from the Ohio 

Valley and from the West Boiler Slag Pond by the “Devil’s Backbone”, a truncated ridge comprised of 

Ordovician-Silurian carbonates. 

There are three discharge areas at the site.217 (i) Groundwater within the old fly ash flows to the 

southwest, along the axis of the bedrock valley. Due to the low gradient across the landfill (less than 0.01) 

and the low permeability of the old fly ash, the groundwater flow velocity is very low. (ii) Southwest of 

the landfill, groundwater in the old fly ash discharges to the silty sand and gravel deposits along the Ohio 

River at an estimated rate of 1.6 gallons per minute (gpm). It is also possible that groundwater flows in 

the alluvial deposits parallel to the Ohio River.

A groundwater flow divide is present near the northeast end of the site; as a result, (iii) a portion of 

groundwater in this area flows along the bedrock valley to the northeast. Groundwater in this portion of 

the landfill flows toward the West Bottom Ash Pond and eventually discharges to the Ohio River. Based 

on flow gradients, there is the potential for a groundwater flow through the bedrock units of the Devil’s 

Backbone to the West Bottom Ash Pond or to alluvial deposits adjacent to the Ohio River. The rate of 

discharge through the Devil’s Backbone was estimated at 1.3 gpm. Groundwater flow through the Devil’s 

Backbone eventually discharges to the alluvial deposits or to the Ohio River. The mean flow in the Ohio 

River near the site is estimated at 52,000,000 gpm and the 7-day, 10-year low flow - at 4,800,000 gpm.

Impact and Damage Claims: EIP (2010) indicates onsite groundwater with manganese above the 

secondary EPA Maximum Contaminant Level (MCL) and boron above the EPA’s Child Health Advisory. 

 

213 AGES (2006). ‘To date’ refers to the publication date of the AGES report (June, 2006).

214 AGES (ibid). The Madison wells range in diameter from 16” to 24” and are completed at depths ranging from 

102 to 123 feet; the Kent well field includes four wells consisting of 8” to 12”, diameter wells completed at depths 

ranging from 61 to 69 feet, one 12” well at a depth of 100 feet, and one 24” well at a depth of 95 feet.

215 GZA GeoEnvironmental (2009a), GZA GeoEnvironmental (2009b), and IKEC’s comment to the October 2011 

NODA docket: EPA-HQ-RCRA-2011-0392-0289. In 2006, IKEC submitted an application to IDEM to upgrade the 

Type III RWS landfill to a Type I RWS landfill in conjunction with a Flue Gas Desulfurization Retrofit Project at 

the plant. The permit for construction and operation of the Type I RWS landfill was issued by IDEM on April 15, 

2008. Since issuance of the permit, IKEC has begun constructing the Type I RWS landfill, and is now placing coal 

combustion residuals in Phase I, which was certified in 2010. The permit allows IKEC to maintain approximately 40 

acres of Type III landfill that is capped, with the remaining cells to be developed as a Type I facility.

216 http://www.ovec.com/News%20Release%205-11-06%20IKEC.pdf

217 This section is from AGES (2006) and SE Technologies (1993), cited in the former study.
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EIP (2010) also notes elevated levels of iron and sulfates in onsite groundwater.218 EIP (2010) mentions 

that groundwater studies of the area indicate groundwater is flowing north out of the landfill where it 

could potentially reach Madison’s municipal wells;219 however no monitoring wells are available to 

confirm this. Surface water monitoring of the discharge from the impoundments has detected levels of 

aluminum and selenium that are above surface water standards for these contaminants, but the permit has 

“monitor only” requirements for these pollutants, so these levels have not triggered any enforcement 

action.220

IDEM claims221 that the parameters that are detected in the groundwater monitoring program are 

reflective of the active total chemistry of the geologic formation. Whereas the levels of manganese, 

magnesium, and iron exceed secondary MCLs in some events, these are the reactive phases of the 

formation and are expected to approach chemical equilibrium.222 IDEM concedes, however, that (CCRassociated) boron was detected at between 9 and 22 ppm in the down-gradient wells. 

 

218 Groundwater monitoring found elevated levels of boron, up to 18 mg/L, manganese, up to 1.9 mg/L, iron, up to 

5.2 mg/L, and sulfates, up to 480 mg/L (IDEM data cited in EIP, 2010). A single arsenic exceedance value, 0.046 

mg/L, is presented in EarthJustice’s comment to the proposed CCR rule, EPA-HQ-RCRA-2009-0640-6314, in

Attachment 5 (an excel spreadsheet), with a footnote stating that this value postdates EIP’s (2010) report for the 

Clifty Creek damage case. However, in the absence of further data, it is impossible to establish what well(s) this 

value was measured in and whether it is an outlier.

AGES (2006) describes the culprit wells - CF-9405, CF-9406, and CF-9407, as completed and screened in 

alluvial deposits along the Ohio River, southwest (downgradient) of the landfill. The hydraulic conductivity (K) 

measured in these wells range from 1.1 x 10-3to 1.6 x 10-2cm/sec, and the vertical hydraulic conductivity is even 

higher, on the order of 10-3to 10-2cm/sec. Both these horizontal and vertical K values in are reasonable for a silty 

sand or silty sand and gravel deposits and given the large groundwater gradient in this portion of the site. In 

measurements between June 1995 and 2006, sulfate, chloride and boron, signature fly ash constituents, have been 

detected in groundwater at these wells at the following range of concentrations: sulfate, <5 to 370 mg/L, boron, 

<0.05 to 17.1 mg/L, and chloride, 7.2 to 33 mg/L.

219 IKEC, in its comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0289, responds that to 

date, the only study that has been alleged to support the claims of off-site groundwater contamination is included in 

a report filed by HNTB, a contractor hired by the City of Madison to perform a well head protection assessment in 

1999. This report was rejected by IDEM for several reasons. According to IDEM, “[i]t is clear from the description 

of the modeling effort that the author is NOT a qualified groundwater scientist. The report demonstrates that the 

groundwater modeling was done without an understanding of: 1) how different boundary conditions are defined and 

how they control flow, 2) the difference between a transient and steady-state simulation, 3) ways to calibrate a flow 

model, 4) how to determine the appropriateness of the model grid for the task at hand, 5) how river leakance is 

defined and how it affects the groundwater flow solution near a river, 6) the definition (and the effect) of aquifer 

anisotropy, and 7) the difference between static and pumping water levels.” (Attachment 3, Review of HNTB 

Delineation report, Madison, IN, page 1, bullet point 3. Emphasis in original.)

220 EarthJustice comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0446.

221 Response to the 2007 NODA comment EPA-HQ-RCRA-2006-0796-0446.

222 According to AGES (2006, pages 2-3), as a condition of the pH variance, in 1994 IKEC installed three 

monitoring wells in alluvial deposits (CF-9405, CF-9406 and CF-9407) downgradient from the landfill. Between 

June 1994 and February 1995, the wells were sampled twice monthly to document background groundwater quality. 

Low-sulfur coal ash was first emplaced at the landfill in January 1995. Between June 1995 and February 2000, the 

wells were sampled for various inorganic constituents on a quarterly basis. Because numerous inorganic constituents 

were not detected and groundwater quality and flow conditions remained very stable, in 2000, IDEM modified the

program to include semi-annual sampling and a reduced list of analytical parameters. The monitoring program

revealed a large degree of natural variation in groundwater quality at the site. Although statistical analyses have 

indicated sporadic increases over background for some constituents, these increases have been attributed to natural 

variation in groundwater quality.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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IKEC also concedes that the down-gradient wells have detected statistical increases in boron, with (as of 

2007) levels up to 13.7 mg/L. Citing a 2004 hydrogeologic report,223 IKEC claims that it is not feasible 

for groundwater flowing out the northern end of the landfill to affect the Madison Municipal Well Field 

because all groundwater from the site discharges to the Ohio River, which flows away from that Well 

Field.224 Also, whatever groundwater discharges into the Ohio River, it will be infinitesimally diluted.225

Finally, IKEC claims that the aquatic life acute selenium water quality criteria established by IDEM and 

the Ohio River Valley Water Sanitation Commission (ORSANCO): 130μg/L and 20μg/L, respectively, 

“are no longer scientifically defensible.”226

USWAG claims227 that the Earthjustice allegations concerning the site do not meet the standards for a 

proven damage case. In the case of the surface impoundment, there is no basis for the claim that 

wastewater discharges exceed the “applicable surface water standards” for aluminum because no numeric 

water quality criterion for aluminum is in effect. In the case of selenium, the water quality standards are 

currently in flux,228 based on IKEC’s reports about the acceptable maximum selenium concentration in 

undiluted discharge from any NPDES point at the site since 1995. This is not evidence of off-site damage 

resulting from disposal of boiler slag in the surface impoundment. The claims regarding damage 

 

223 In its comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0289, AGES (2006) reports on a

1992/93 study conducted by SE Technologies in the course of which 14 piezometers and eight monitoring wells

were installed, hydrologic conductivity and soil studies were performed, and groundwater monitoring was launched. 

AGES (2006) study included installation of 28 piezometers, 16 soil borings, surveying, and several years of water 

level monitoring. The results of both investigations indicate that groundwater from the northern end of the landfill 

discharges to the on-site West Bottom Ash Pond or the West Branch of Clifty Creek before flowing into the Ohio 

River. According to both studies, the West Branch of Clifty Creek, Clifty Creek and the Ohio River are extremely 

effective hydraulic barriers to eastward groundwater flow toward the Madison Well Fields, which are located 0.5 to 

three miles upstream from the landfill (AGES, 2006; attachment 1 to EPA-HQ-RCRA-2011-0392-0289). 

224 Monitoring results cited in AGES (2006) are as follows: Madison wells: sulfate results were 0.111 mg/L and 0.03 

mg/L in 1995 and 1996, respectively. Kent wells: sulfate results were 47 mg/L, 44 mg/L and 23 mg/L in 1987, 1990 

and 1993, respectively, and boron were 0.0094 mg/L, 0.0242 mg/L, and below detection level (0.005) in two other 

wells. The most recent sampling event (November 2005) of four of the wells, yielded the following data: the highest 

boron levels, registered in two wells, were 0.0172 and 0.0377 mg/L; and sulfate ranged between 37.72 and 67.80 

mg/L. 

According to IDEM (EPA-HQ-RCRA-2011-0392-0269), during a 2002 permit renewal appeal, contrary to 

the representation in EIP (2010), an agreement was reached that the groundwater from the landfill flows towards the 

Ohio River rather than north towards the City of Madison; therefore, any well fields located near Hanover or City of 

Madison are not downgradient of the landfill. The cited monitoring data for the Madison and Kent (Hanover) well 

fields support the contention that there is no adverse effect on groundwater quality at either location.

225 IKEC Response to the 2007 NODA EarthJustice comment EPA-HQ-RCRA-2006-0796-0446 and IKEC’s

comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0289. Based on their study, AGES

(2006; Attachment 1 to said comment) determined that it is not feasible for groundwater from this portion of the 

landfill to affect the Madison Well Fields because all groundwater from the site discharges to the Ohio River, which 

flows to west/southwest, away from the Madison Well Fields. In addition, the minimal volume of groundwater 

discharging from the entire site is diluted in the Ohio River by a factor of approximately 720,000 to over 1,500,000. 

At this rate of dilution, constituents in groundwater from the site would be undetectable with standard analytical 

methods.

226 IKEC claims that an EPA, soon to be published acute criterion “is expected to be 186μg/L”, and that the 

maximum NPDES site sampling datum going as far back as 1995, 40μg/L, is well below the upcoming EPA 

criterion.

227 EPA-HQ-RCRA-2006-0796-0468: Rebuttal to the 2007 NODA EarthJustice comment EPA-HQ-RCRA-2006-

0796-0446.

228 See EPA Notice of Draft Aquatic Life Criteria for Selenium and Request for Scientific Information, Data, and 

Views, 69 Fed. Reg. 75541 (Dec. 17, 2004).
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

66

attributable to the RWS landfill similarly do not satisfy the criteria for a proven damage case. All the 

groundwater data fall within Indiana state regulatory requirements and Federal MCLs for primary 

drinking water constituents. The only allegation of impact on groundwater concerns boron, which is not a 

primary drinking water constituent. Elsewhere, USWAG claims229 that this site does not meet the criteria 

for a damage case.

Evaluation against Proven Damage Criteria230

Other Considerations: According to the Utility Solid Waste Activities Group (USWAG) response, 

IDEM rejected the report that groundwater could be flowing north out of the landfill and possibly to 

municipal wells on “multiple deficiencies.” This was verified with IDEM. 

Resolution: Citizens’ groups appealed December 2002 Type I Restricted waste landfill permit, 

requesting additional monitoring, and installation of a liner during future construction. IKEC and IDEM 

rejected the requested changes, and the appeal has been subject to multiple judicial reviews since 2003. 

IDEM renewed IKEC's permit in April 2008.231 According to IDEM, the permit appeal was resolved 

through an Order issued by the Office of Environmental Adjudication on August 24, 2009, in favor of 

Clifty Creek Station.232 On March 15, 2012, the Indiana Supreme Court granted a petition to transfer the 

 

229 Comment to the 2011 NODA docket (EPA-HQ-RCRA-2022-0392-0211): “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. The 

allegation in the reference claims that groundwater flows north from the landfill and could impact the City of 

Madison’s municipal wells, but provides no data to support the claim. In addition, all CCR’s have been placed in a 

certified Type I landfill, with a geosynthetic clay liner and leachate collection system, since 2010. The former Type I 

landfill is capped and closed in accordance with the regulations of the Indiana Department of Environmental 

Management. The USEPA classified this site as “Indeterminate” in their 2007 report (Coal Combustion Waste 

Damage Case Assessments, EPA‐HQ‐RCRA‐2006‐0796‐0015) due to insufficient information; no new information 

has been provided pertaining to this site in the Reference Document.”

230 ICF (2010a).

231 IKEC (2009): The permit includes installation of a composite liner with a nominal hydraulic conductivity of

5x10-9cm/sec.

232 IKEC, in its comments to the October 2011 NODA docket EPA-HQ-RCRA-2011-0392-0269 and EPA-HQRCRA-2011-0392-0289, claims that while the Citizens Groups did appeal the landfill permit, IKEC did not “reject” 

the installation of a liner for future landfill expansions – in fact, IKEC has a Type I landfill that is already permitted 

and in operation. As part of the landfill upgrade, IKEC installed a Flexible Membrane Liner (FML), consisting of 

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 

secondary MCL for manganese, and exceeded 

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

 None
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

67

case and has assumed jurisdiction over IKEC’s appeal;233 however, on March 22, 2012, the Indiana 

Supreme Court reversed its judgment by denying the transfer petition filed by the appellant (IKEC) and 

by reinstating the Indiana-Kentucky Elec. Corp. v. Save the Valley, Inc., 953 N.E.2d 511.234

IDEM claims that the boron SMCL exceedances in down-gradient groundwater monitoring wells do not 

trigger a Corrective Action, but rather an ’assessment monitoring’. The facility has not shown any 

consistent release of metals of concern at levels of statistical significance past the monitoring boundary.235

ICF (2010) Rationale: Not a Damage Case. <There are no onsite or offsite groundwater exceedances 

of EPA MCLs. Onsite SMCL exceeded for manganese only with no indication of other primary MCL 

contaminants exceedances. As manganese may be leached from soil under any landfill condition alone it 

is not enough to specifically implicate CCR in health risk.>

Postscript: Considering the indisputable, statistical increases in the exceedances of boron in downgradient wells, ICF’s rationale is flawed and this site qualifies as a Potential Damage case.

References

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

Cases of Contamination from Improperly Disposed Coal Combustion Waste, Case #7. 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 #7. ICF, 10/2010.

IKEC (2009): Ohio Valley Electric Corporation/Indiana-Kentucky Electric Corporation Response Letter 

to EPA’s ICR on Surface Impoundments, March 25, 2009. Accessed Online July 2012.

http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys/ovec-inky-clifty.pdf

 

30-mil PVC membrane, and underlain by a Geosynthetic Clay Liner (GCL), which consists of a sodium bentonite 

layer sandwiched between geotextile fabrics, as well as a leachate collection system. The new liner has a nominal 

hydraulic conductivity of 5x10-9cm/sec, which meets or exceeds all applicable state requirements for a Type I RWS 

landfill.

IKEC also claims (EPA-HQ-RCRA-2011-0392-0289, Attachment 2) that what has been in dispute is the 

Citizens Groups standing to appeal IKEC’s permit, rather than issues related to the environmental impact of IKEC’s 

permitted landfill. What is relevant to the Citizens Groups’ claim that the IKEC landfill is adversely impacting the 

Madison City water supply are “Findings the Facts and Conclusions of Law” issued by the Indiana Office of 

Environmental Adjudication (IOEA): (i) “[t]he water from the City of Madison does not exceed any regulatory 

limits for pollutants in drinking water” (Attachment 2, Findings of Fact 15, page 3) and (ii) “[t]he conclusion after 

seven years after this Permit was issued, water supplied by the City of Madison meets all federal and state regulatory 

limits for pollutants.” (Attachment 2, Conclusion of Law 14, page 5). The August 24, 2009 Final Order of the IOEA 

clearly debunks the Citizens Groups’ apparent claim that environmental issues are still in dispute.

233 Indiana Kentucky Electric Corporation 21 v. Save the Valley Inc. (2011), and Indiana-Kentucky Electric Corp., 

et al. v. Save the Valley, Inc., et al. (2012).

234 http://www.in.gov/judiciary/files/order-other-2012-49S02-1202-MI-72.pdf

235 This position is reiterated in IDEM’s comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-

0269: “To date there has not been any testing results that have triggered the need for corrective action under the 

solid waste rules. Therefore the facility remains in the current groundwater monitoring program.” 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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GZA GeoEnvironmental (2009a): Task 3 Dam Assessment Final Report, Clifty Creek Station West 

Bottom Ash Pond, Madison, Indiana, September 14, 2009. Accessed Online July 2012.

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

GZA GeoEnvironmental (2009b): Task 3 Dam Assessment Final Report, Clifty Creek Station West South 

Fly Ash Pond, Madison, Indiana, September 14, 2009. Accessed Online July 2012.

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

AGES (2006): Evaluation of Potential Risk to Supply Well Fields, Indiana-Kentucky Electric 

Corporation, Clifty Creek Station, Applied Geology and Environmental Science (AGES), Inc., June 2006. 

Attachment 1 to EPA-HQ-RCRA-2011-0392-0289. Accessed Online November 2014.

http://www.regulations.gov/#!searchResults;rpp=25;po=0;s=EPA-HQ-RCRA-2011-0392-

0289;fp=true;ns=true

IDEM (1999): Review of HNTB Delineation Report, Madison, Indiana. Indiana Department of

Environmental Management (IDEM), 1999. Attachment 2 to EPA-HQ-RCRA-2011-0392-0289. 

Accessed Online November 2014.

http://www.regulations.gov/#!searchResults;rpp=25;po=0;s=EPA-HQ-RCRA-2011-0392-

0289;fp=true;ns=true

IDEM (2008): Approval of Major Modification and Renewal of Solid Waste Facility Permit FP39-04, 

Response to Public Comments. Indiana Department of Environmental Management (IDEM), 2008. 

Attachment 3 to EPA-HQ-RCRA-2011-0392-0289. Accessed Online November 2014.

http://www.regulations.gov/#!searchResults;rpp=25;po=0;s=EPA-HQ-RCRA-2011-0392-

0289;fp=true;ns=true

Indiana Kentucky Electric Corporation 21 v. Save the Valley Inc. (2011): Indiana Kentucky Electric 

Corporation, Appellant–Petitioner, Indiana Department of Environmental Management, Party Pursuant to 

Ind.Code § 4–21.5–5–6(d), v. Save the Valley, Inc., Hoosier Environmental Council, Inc., and Citizens 

Action Coalition of Indiana, Inc., Appellees–Respondents. Court of Appeals of Indiana No. 49A02–

1011–MI–1178, August 9, 2011. Accessed Online August 2014.

http://www.in.gov/oea/.../2010_OEA_21_Clifty_Creek_remanded.pdf

PTb13. Lansing Station Ash Ponds and Landfill – Alliant/IPL, Lansing, Allamakee 

County, Iowa

Type: Landfills and Surface Impoundments.

Background and Description: The Lansing Power Station was first constructed in 1948,236 with three 

additional generating units added subsequently.237 The Lansing Power Station is located on the west bank 

 

236 Namely, Unit 1, with a generating capacity of 15 MW.

237 According to Dewberry, LLC (2011), the expansion constituted Unit 2 in 1949 (12 MW); Unit 3 in 1957 (38 

MW); and Unit 4 in 1977 (275 MW). According to plans filed with the Minnesota Public Service Commission on 

November 1, 2010, Alliant Energy plans to close generation Units 2 and 3 (at that time, Unit 2 was already idle): 

Plain Justice Today (2010).

According to http://plainsjustice.org/files/IPL%20Action%20Plan%2011-1-10.pdf, IPL announced plans in 2008 to 

install a selective catalytic reduction (SCR) system and baghouse at Lansing Unit 4 to reduce NOx and mercury 

emissions, respectively (in July 2010, IPL completed the installation of both emission control systems). Finally, 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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of the Mississippi River, south of the City of Lansing, Iowa. The site contains an ash landfill238 which first 

received CCR around 1985, as well as a14.8-acre main ash pond (Ash Pond 1)239 and a 0.2 acre lower ash 

pond (Ash Pond 2),240 both unlined.241 All the waste units are currently active. Groundwater monitoring is 

required for the landfill but not the ponds. The plant is located in a rural area near the Mississippi River 

with an estimated 33 private wells within a 2 mile radius. However, no offsite monitoring data is 

available.

According to EIP (2010a), alluvium/colluvium of varying thicknesses lies over bedrock in the area of the 

CCR Landfill. Alluvial deposits of the Mississippi River are at least 50 feet thick in the vicinity of the 

Power Plant north of the current Ash Pond. A 1982 soil boring within the area of a closed ash lagoon 

found a shallow water table in alluvial silt and sand about 25 to 30 feet thick. The ash landfill and ponds 

are underlain by inter bedded fine sandstones and siltstones of the Lone Rock Formation, which overlies 

the regional Dresbach Aquifer. Monitoring wells are completed in the Lone Rock Formation and the 

MW4 and MW5 cluster shows an upward hydraulic gradient, consistent with a groundwater discharge 

area. The flow of the regional aquifer is north-northwest toward the Mississippi River.242 However, the 

potentiometric map of the area does not appear to take into account the localized, more westerly flow in 

shallow groundwater in the alluvium of the valley in which the CCR landfill and impoundments are 

located. The alluvium, which is generally more permeable than the fine-grained sandstones of the bedrock 

aquifer, probably represents a near-surface groundwater system that creates a preferential flow path for 

contaminants to the west-northwest. The presence of contaminants in the downgradient well MW-11, as 

well as in MW-11R, its co-located replacement, is consistent with this interpretation.

Impact: According to EIP (2010a), in 2002, the first year of monitoring, arsenic concentrations were 

measured onsite in one of the two down-gradient well (MW11) above the primary EPA Maximum 

Contaminant Level (MCL). The report also notes that concentrations of iron and sulfate in this same well 

were above secondary EPA MCLs (SMCLs), and manganese - far above USEPA’s Lifetime Health 

 

according to the Alliant Energy’s 2011 Annual Report, the Utility has committed to install, by 2015, a scrubber to 

reduce SOx emissions in Unit 4. 

238 Iowa DNR Permit 03-SDP-05-01. According to USWAG’s Comment to the 2011 NODA docket (EPA-HQRCRA-2011-0392-0211), the landfill has no liner. According to Dewberry, LLC (2011), the 7- acre landfill 

discharges runoff into the south end of Ash Pond 1. According to BT2(2008), A screening berm made of CCR was 

constructed around the landfill in the September 2002 to August 2003 time frame, the current permit was issued by 

IDNR on September 11, 2003, and CCR placement in the landfill started shortly thereafter. 

239 Ash Pond 1 has a total storage capacity (measured in 1999) of 474,000 cubic yards.

240 Ash Pond 2 has a total storage capacity estimated at 2900 cubic yards (March 2009). This pond does not contain 

significant amounts of ash. Most of the ash settles out in Ash Pond 1; ash was excavated from Ash Pond 2 in 2002. 

Ash Pond 2 discharges into a channel directly connected to the Mississippi River.

241 According to Alliant Energy (2009), both ponds were commissioned approximately in 1975. Both pond are in 

receipt of fly ash, bottom ash, and ‘other’ CCR-related waste [i.e., ash transport water, boiler water wash, air heater 

wash (fly ash), steam grade water production wastewaters, storm water runoff from landfill, plant floor drains, and 

boiler blowdown (steam/water)]. According to Dewberry, LLC (2011), Ash Pond 1 is periodically excavated to 

remove the ash for beneficial reuse and landfill. As of 2011, the adjacent landfill was estimated to be active for 

another 5 years.

242 RMT (2010), Figure 3, and SCS BT2 letter to IDNR, October 24, 2012, Figure 1. 
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Advisory Level.243 The well which measured the exceedances is between the CCR landfill (to the east) 

and the Ash Settling Pond (to the west), so the source of contamination could be from either area.244

According to the State,245 as of the most recent annual water quality report, all down-gradient monitoring 

wells at this site for arsenic and the secondary contaminants were well below the MCL and the upgradient control limits. Also, the referenced arsenic exceedance was from a monitoring well that has been 

dry since August 2004, which likely did not yield valid or representative samples to appropriately 

characterize the site. However, the latest (April 2010 and November 2011) Annual Groundwater Quality 

Reports246 still show exceedances of SMCLs in the down gradient well MW-11R (a 2010 replacement of 

MW-11) for iron (1,690 μg/L and 27,900 μg/L in 2010 and 2011, respectively)247 and manganese (3,580 

μg/Land 4,950 μg/L, respectively),248 and significantly higher levels (although still within the 

corresponding standards) of specific conductance, barium, boron, cobalt, magnesium, and chloride in 

comparison to the up gradient wells. In addition, in 2011 arsenic exceeded the MCL (11.6 μg/L)249 in 

MW-11R, whereas in 2010 arsenic in that well was significantly higher (2.44 μg/L) than in the up

gradient and side-gradient wells, although still within the standard. 

Alliant Energy claims250 that arsenic groundwater test results exceeding the MCL have never been 

detected at any of the other monitoring wells at the CCR landfill, and these exceedances have not been 

observed again at MW-11 since 2004. While Alliant Energy acknowledges that a single down gradient 

groundwater monitoring well onsite (MW-11) had arsenic exceedances in 2002, 2003, and 2004, there has 

been no evidence to suggest that any groundwater contamination has extended to any off-site location.251

The sampling contractor (BT2), in their January 18, 2005 letter to IDNR conceded that during the 2004 

quarterly monitoring, the groundwater elevations in MW11 twice dropped below the bottom of the 

well.252 They stated that “If MW11 is dry during the spring 2005 sampling event we will evaluate 

installing a replacement well at a deeper depth.” Because MW11 was dry during each of the sampling 

 

243 EIP (2010a) presents the following data, which is derived from only three sampling events from 2002 through 

2004 (“ too few to sufficiently assess trends data”): 

• Arsenic averages 0.0143 mg/L (1.4 times federal MCL). Maximum value is 0.023 mg/L (2.3 times MCL). 

• Iron averages 13.1 mg/L (43 times the SMCL). Maximum value is 28 mg/L (93 times SMCL). 

• Manganese averages 7.1 mg/L (142 times the SMCL). Maximum value is 10 mg/L (200 times the SMCL). 

• Sulfate averages 243 mg/L (almost equal to the SMCL). Maximum value is 380 mg/L (about 1.5 times SMCL).

244 BT2

(2009) claims that ‘based on the water level measurements collected at the site since 2001, MW6 is up 

gradient of the landfill site. MW4, MW5, and MW11 are down gradient of the landfill site....the site does not appear 

to be affected by groundwater mounding’. EIP (2010a), however, claims that the groundwater monitoring network at 

the site does not appear to be designed to detect contamination that may be leaving the site. E.g., MW4 and MW5, 

located on the north side of the landfill, are identified as “down gradient” wells, but their data do not show 

significant differences from “up gradient” well MW6, and MW4 and MW5 do not appear to be in a location that 

would detect the migration of contaminants off-site. This observation is supported by the definition of MW4 and 

MW5 as ‘side-gradient’ wells (RMT, 2010).

245 Iowa DNR comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0236.

246 RMT (2010), Table 3, and TRC (2011), Table 3.

247 EPA’s SMCL for iron is 300μg/L.

248 EPA’s SMCL for manganese is 50μg/L.

249 EPA’s MCL for arsenic is 10μg/L.

250 Alliant Energy’s November 14, 2011 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0290: 

http://s398369137.onlinehome.us/files/Regulation.gov/PublicSubmission/2011%2F11%2F22%2FEPA%2FFile%2F

EPA-HQ-RCRA-2011-0392-0290-7.pdf

251 However, according to EIP (2010a) and to USWAG (EPA-HQ-RCRA-2011-0392-0211), there are no off-site 

monitoring wells to verify this statement. Furthermore, for the ash ponds, no groundwater monitoring is required.

252 Based on the 2004 and 2009 Annual Water Quality Reports.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

71

campaigns between 2006 and 2009 (and only a minimal amount of water in the well was recorded in the 

February 2004, November 2004, and May 2005 samplings which, according to BT2, rendered the 

sampling records unreliable), a replacement well (MW-11R) was installed in 2010. 

Resolution/Remediation: According to EIP (2010a), IDNR required (in 2009) that MW11 be evaluated 

to determine why it has been difficult to obtain groundwater samples and to replace it with a waterbearing well if it continues to remain dry. A replacement well (MW-11R) was installed in 2010. 

Following the exceedances of arsenic, manganese and iron detected in MW-11R, IDNR required an

assessment monitoring, to determine if the ash settling ponds or natural variability within the aquifer are 

contributing sources of the elevated constituents; if the CCR landfill is confirmed as a source, the 

delineation of the extent of groundwater impacts within the water table aquifer; and identification of any 

current or potential human health and environmental impacts due to the identified site conditions. 253 In 

response to IDNR requirement, IPL submitted to IDNR a Groundwater Assessment Workplan for the 

Lansing Power Station, including the installation of additional monitoring wells, and, for two rounds of 

assessment monitoring, a more comprehensive parameter list.254

There are no administrative rulings or court decisions.

USWAG concludes that the site does not qualify as a damage case.255

Evaluation:256

 

253 IDNR (2012).

254 The Plan was submitted in September 2012: see SCS BT2

(2012). IPL contends that existing dredge fills beneath 

the landfill might be the source of the contamination. 

255 USWAG’s Comment to the 2011 NODA docket, ibid: “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 on‐site groundwater data 

in the Reference Document is from only one monitoring well sampled annually between 2002 and 2004 (only three 

sampling events). No data from other wells in the monitoring well network were presented.”

256 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 the primary EPA 

MCLs for arsenic. 

 Onsite groundwater data exceeded EPA SMCLs for 

iron, sulfate, 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)

 None

Criterion 3: Where there has been an 

administrative ruling or court decision with an 

 None
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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Rationale for Rejection: ”Inadequate information. Groundwater exceedances of the primary EPA MCL 

for arsenic and the EPA SMCLs for iron, sulfate, and manganese have been found onsite in only one well 

(MW-11) during limited rounds. However, the ability of this well to provide representative groundwater 

samples is in question as it has been dry for all but 3 of the past 11 sample collection rounds. Therefore, 

there is inadequate information to determine if the observed sporadic groundwater contaminant 

concentrations are attributable to CCRs. While the Iowa DNR has required an evaluation of MW11, there 

are no administrative rulings or court decisions associated with the site.”

Postscript: Based on the two most recent groundwater quality reports (2010 and 2011), MW-11R 

demonstrated SMCL exceedances of iron and manganese, and in 2011 - exceedance of the MCL for 

arsenic.

257 IDNR’s requirement that IPL launch assessment monitoring due to exceedance of arsenic 

(2011) and two consecutive SMCL exceedances for iron and manganeses (2010-2011) would provide 

adequate information to determine whether this site qualifies as a potential damage case.

This case is reinstated as a potential damage case based on a recent industry feedback:258"While Alliant 

Energy acknowledges a single groundwater monitoring well located on the power plant site (MW-11) had 

groundwater sampling results that exceeded the arsenic MCL in years 2002, 2003, and 2004,...these high 

arsenic groundwater test results have not been observed again at MW-11 since 2004...there has been no 

evidence reflecting any groundwater quality contamination has extended or is a concern to any off-site 

location."

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, 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 #7. ICF, October 2010.

Alliant Energy (2009): Response to Request for Information Under Section l04(e) of the

Comprehensive Environmental Response, Compensation, and Liability Act, Lansing Generating Station 

(submitted on behalf of Interstate Power & Light), March 27, 2009. Accessed Online March 2013.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys/alliant-elgs.pdf

Dewberry, LLC (2011): Coal Combustion Waste Impoundment Round 7 - Dam Assessment Final Report,

Lansing Generating Station, Interstate Power and Light Company (IPL), Lansing, Iowa, Dewberry, LLC

Fairfax, Virginia, March 2011. Accessed Online March 2013.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/alliant-lansing-final.pdf

 

257 RMT (2010), Table 3, and TRC (2011), Table 3.

258 Comment to the October 2011 NODA docket, on behalf of Interstate Power & Light Co. (EPA-HQ-RCRA-2011-

0392-02900. 

explicit finding of specific damage to human 

health or the environment
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

73

State documents accessed at Solid Waste Database hyperlink: http://www.iowadnr.gov/waste/index.html, 

including:

BT2(2009): BT2Incorporated, Annual Water Quality Report, 2009, Alliant Energy / Interstate Power and 

Light, Lansing Power Station CCR Landfill. Accessed Online March 2013 through 

https://programs.iowadnr.gov/solidwaste/reports/DocumentDNA.aspx

BT2(2008): BT2Incorporated, Annual Water Quality Report, 2008, Alliant Energy / Interstate Power and 

Light, Lansing Power Station CCR Landfill. Accessed Online March 2013 through 

https://programs.iowadnr.gov/solidwaste/reports/DocumentDNA.aspx

RMT (2010): Annual Water Quality Report, 2010, Alliant Energy / Interstate Power and Light, Lansing 

Power Station CCR Landfill. Accessed Online March 2013 through 

https://programs.iowadnr.gov/solidwaste/reports/DocumentDNA.aspx

TRC (2011): TRC Environmental Corporation Annual Water Quality Report, 2011 (November 14, 2011), 

Alliant Energy / Interstate Power and Light, Lansing Power Station CCR Landfill. Accessed Online 

March 2013 through https://programs.iowadnr.gov/solidwaste/reports/DocumentDNA.aspx

IDNR (2012): Iowa Department of Natural Resources, Interstate Power and Light Company - Coal 

Combustion Residue Landfill, Annual Water Quality Report: a letter to Andy Johnson, IPL, July 3, 2012. 

Accessed Online Oct 2010 through https://programs.iowadnr.gov/solidwaste/reports/DocumentDNA.aspx

SCS BT2(2012): SCS BT2 Response to IDNR Review of Comments – Groundwater Assessment 

Workplan, Lansing Power Station - Coal Combustion Residue Landfill, Lansing Iowa, a letter to Michael 

Leat, IDNR, October 24, 2012. Accessed Online Oct 2010 through 

https://programs.iowadnr.gov/solidwaste/reports/DocumentDNA.aspx

Plain Justice Today (2010): Alliance to Close Boilers at 7 Sites across Iowa. Plain Justice Today, 

November 8, 2010. Accessed Onsite August 2014.

http://plainsjusticeblog.wordpress.com/2010/11/08/alliant-to-close-coal-boilers-at-7-sites-across-iowa/

PTb14. George Neal Station North Landfill, Berkshire Hathaway - MidAmerican Energy 

Company, Sergeant Bluff, Woodbury County, Iowa

Type: Landfill (in a former Sand and Gravel Pit) and Surface Impoundments.

Background and Description: The George Neal North Energy Facility (NNEF)259 has placed coal 

combustion residual (CCR) into an unlined monofill since 1978. The landfill was originally permitted in 

 

259 According to http://www.sourcewatch.org/index.php?title=George_Neal_Station_North, the Plant’s nameplate 

capacity is 1,046 MW; it comprises three generating units (with in-service dates in parenthesis): 147 MW (1964), 

349 MW (1972), and 550 MW (1975). It is fueled with Appalachian sub-bituminous coal from Virginia and West 

Virginia. According to 

http://www.mcilvainecompany.com/Decision_Tree/subscriber/Tree/DescriptionTextLinks/ITT%20Pumps%20in%2

0Iowa%20Power%20Plant.htm, Units 2 and 3 have pulverized coal boilers while Unit 1 consists of a cyclone-fired 

boiler. NNEF has a once through cooling system, drawing water from the Missouri River. According to a January 

2013 Consent Decree between MidAmerican Energy and the Sierra Club, boiler one and boiler two (147 MW and 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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1997 and re-permitted in 2001.260 The landfill has two sections: a 32-acre west area, which receives 

mostly fly ash and a 50-acre east area, which receives other CCR. Permits for expansion are currently 

under review. The west area of the landfill is capped and closed while the east area of the landfill was 

scheduled for closing late in 2010. The Plant’s site also contains three unlined surface impoundments, 

covering a total of about 116 acres.261 The Plant lies in a rural area on the east bank of the Missouri River, 

approximately 5 miles south-southwest of Sergeant Bluff and approximately 4 miles west-northwest of 

Salix, Iowa. The plant has a National Pollutant Discharge Elimination System (NPDES) permit and an 

Iowa Landfill permit.262

Most of the region is covered by variable thickness of Pleistocene and Recent sediments: glacial till, 

loess, glacial outwash, and river deposits. The NNEF is located on the outside of a meander bend on the 

Missouri River’s floodplain. The site is underlain by up to 140 feet-thick alluvial deposits (gravel, sand 

and silt). The topmost underlying bedrock comprises 340-feet thick sandstone and shale of the 

Cretaceous Dakota Group.263 The alluvial sequence contains two aquifers: a shallow, unconfined aquifer, 

which coincides with fine-grained, near-surface alluvium; and a deeper, semi-confined aquifer, which 

coincides with thick sand and gravel deposits. 264 There is a general vertical hydraulic gradient between 

the shallow and deeper alluvial aquifers. The shallow aquifer is encountered at depth ranging from just 

below the surface to 18 feet; it may contain elevated iron and/or hydrogen sulfide. The natural flow of 

both alluvial aquifers is to the southwest, toward the Missouri River; however, mounded water table 

conditions are evident in the area of the monofill, which result in localized flow to the east and south. 

The deeper, Dakota sandstone artesian aquifer is the main regional aquifer.265 As of the mid-1970s, the 

closest wells tapping the Dakota aquifer were in the Sergeant Bluff area, some six miles to the north. 

These wells yielded between 20 and 600 gpm.

Impact and Damage Claims: According to EIP (2010a), when a groundwater monitoring program was 

implemented in 2001, every down-gradient well in the shallow and deeper alluvial aquifers exceeded the 

federal Maximum Contaminant Level (MCL) for arsenic, with average values in all but one of the wells 

ranging from 0.0251 to 0.0882 mg/L (2.5 to 8.8 times the MCL) and a maximum concentration recorded 

of 0.218 mg/L (22 times the MCL). Available information indicates that the monofill is the primary 

source of arsenic in the shallow and deep aquifers, though there may be some contribution of arsenic to 

 

349 MW, respectively) will be retired by April 16, 2016 (Sourcewatch, 2013). This agreement is in resolution of an 

action brought by Sierra Club against MidAmerican Energy Co. pursuant to sections 304 of the CAA, 42 U.S.C. 

§7604, for injunctive relief for alleged violations of the Act.

260 Earthjustice et al., (2008) claim that the MidAmerican Neal North CCR Landfill permitted in 2001is located in an 

abandoned sand and gravel pit (IDNR ID No. 97-SDP-12-95P).

261 MidAmerican Energy Response (2009) and Dewberry & Davis (2011): The NNEF has three surface 

impoundments in series, designated as Pond 1, Pond 2, and Pond 3 (comprising ponds 3A, 3B North, and 3B South). 

Pond 1 receives boiler slag; Ponds 2 and 3B North receive bottom- and economizer-ash; Pond 3A receives sluiced 

inflow from Pond 2; and Pond 3B South serves as a ‘polishing’ pond. Two of the impoundments were constructed 

in1972, and one – in 1975. The corresponding disposal capacities of impoundments 1, 2, and 3 are 220,000, 

477,000, and 1,351,000 cubic yards, respectively.

262 NPDES permit No. IA0004103 and Iowa Landfill permit 97-SDP-12-95P.

263 EPA-7-IA-Salix-Woodbury-NSDP-77-004 (1977)

264 The deeper alluvial aquifer is rather high-yield. According to EPA-7-IA-Salix-Woodbury-NSDP-77-004 (1977), 

five, 12” diameter and 110-feet deep wells drilled in 1965 for the Terra Chemical Company adjacent to the NNEF 

produced 650 gallons per minute (gpm) with only two to six feet of drawdown.

265 According to EPA-7-IA-Salix-Woodbury-NSDP-77-004 (1977), in the mid-1970s it supplied Sioux City with 28 

million gallons per day from 16 wells, yielding up to 1,400 gpm per well.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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the deep aquifer from an up-gradient source. High levels of manganese, iron, and sulfate have also been 

found in groundwater down-gradient of the CCR monofill.266

The risk evaluation report prepared by MidAmerican Energy Company’s consultants identified no known 

human receptors or water wells down-gradient of the CCR Monofill. However, the report did note that the 

closest water wells are two wells MidAmerican Energy uses for drinking water at the NNEF. These wells 

were sampled four times for arsenic in 2002, but the detection limit (0.08 mg/L) was eight times higher 

than the current MCL, making it impossible to determine whether there were any exceedances of the 

MCL. 

EIP (2010a) notes that some up-gradient wells, particularly in the deep aquifer, also indicate 

contamination by arsenic. MidAmerican Energy suggests267 that the up-gradient arsenic contamination is 

due to up-gradient sources of contamination, and is not CCR-related. EIP (2010a) counters that some of 

the up-gradient wells are improperly classified because groundwater does flow from the monofill towards 

these wells due to mounding, and because the impoundments may also contribute (though this could not 

be confirmed as there is no monitoring data available for the impoundments). EIP (2010a) also notes that 

down-gradient concentrations are on average higher than the up-gradient levels, even within the same 

groundwater path, indicating some of the contamination is likely from the landfill.

According to both IDNR268 and MidAmerican Energy, the background levels of arsenic naturally exceed 

the MCL at the site. Late in 2010, a series of tests was conducted to evaluate water quality at two drinking 

water wells close to the power plant site. In these sites, arsenic levels were below EPA’s drinking water 

standards. Further review of annual groundwater quality reports for this site has identified several 

instances of contaminant levels being misrepresented in EIP (2010a) by failing to consider background 

levels, citing data outliers as current site conditions, and due to incorrect application of current upgradient control limits.

According to MidAmerican,269 multiple studies have reported arsenic is a common constituent in 

groundwater and soil in the state of Iowa.270 The IDNR Study Report noted, “because of the high 

percentage of detections (100%) and the state-wide distribution of arsenic in the soil, it is thought to be 

naturally occurring from the breakdown of arsenic bearing minerals, such as pyrite, in the glacial till and 

rock parent material.” A review of contour maps indicates that soil surrounding the George Neal Station 

facilities has some of the state’s highest concentrations of arsenic from naturally occurring sources.

 

266 According to Rowden (2010), The mean concentration of arsenic in the soil samples was three orders of 

magnitude greater than typical arsenic concentrations found in surface water samples collected across Iowa by the

USGS and the IDNR (www.igsb.uiowa.edu/web apps/iastoret/, no longer accessible). In a recent groundwater study, 

48 percent of the water samples from Iowa rural drinking water wells contained arsenic, with eight percent of the 

samples containing arsenic at levels above the USEPA maximum contaminant level (MCL) of 10.0 ppb for public 

water supplies (SWRL2, 2009).

267 Mid American comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0233.

268 IDNR comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0236.

269 MidAmerican Energy comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0233.

270 E.g., University of Iowa and others’ statewide private wells studies in 2004 and 2006-2008, and IDNR 2010 

study on the geochemistry of soil samples collected from across the state (Rowden, 2010). According to Table 3 of 

that study, using inductively coupled plasma-atomic emission spectrometry/acid dissolution (ICP40), the arsenic 

median concentration and standard deviation of statewide shallow soil samples are 8.40 ± 2.70 ppm, and the 

corresponding statewide values for deep soils are 9.50 ± 3.25 ppm. Using ICP40 or atomic absorption spectrometry

(AA), the median arsenic levels in northwestern Woodbury County range between 12-13 ppm (ICP40) or between 

10-12 ppm (AA) for the shallow soil samples, respectively, and between 13-14 ppm (ICP40) or between 13-15 ppm

(AA) for the deep soil samples.
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Evaluation against Proven Damage Criteria271

Resolution: No enforcement action has been taken at the Neal North Generating Facility Ash Monofill. 

MidAmerican Energy Company submitted a risk evaluation for arsenic to IDNR in 2006, and IDNR 

requested more data to support the conclusion in the risk evaluation attributing the high concentrations of 

arsenic to off-site sources or the submission of a plan to address the arsenic plume. 

The George Neal Station North landfill completed construction of a new composite lined cell in 2009 and 

the older cells are being closed and capped.

USWAG claims that this site does not qualify as a damage case.272

 

271 ICF (2010a).

272 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 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 Document also claim damage to the Missouri River but provide no surface water 

sample data or scientific study to support the claim.

MidAmerican tested the groundwater and surface water in various locations of the Missouri River, drinking water 

wells, and the drinking water systems at both George Neal Station North and George Neal Station South on August 

30 and 31, 2010..... Where there were detectable levels of arsenic in the samples, they were still below the drinking 

water standards (i.e., MCLs) – meaning that the raw river water and raw well water at or around the two George 

Neal Station sites meets USEPA drinking water standards for arsenic. The actual processed drinking water at both of 

the sites was below detectable levels.” Reference: Test America. 2010. Analytical Reports (2) prepared for 

MidAmerican Energy, Sioux City, Iowa. September 3, 2010. The same information is also cited in MidAmerican 

Energy’s comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0233.

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 EPA SMCLs for 

iron, sulfate, 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)

 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 I (Cases 1-32) December 2014

77

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

arsenic and the EPA SMCLs for iron, sulfate, and manganese 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 #5, 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 #5. ICF, 10/2010.

US EPA, Facility Registry System, Facility Detail Report, MidAmerican Energy Co Neal North. 

Accessed Online Oct 2010. 

http://oaspub.epa.gov/enviro/fii_query_dtl.disp_program_facility?p_registry_id=110001323318

State documents accessed at Solid Waste Database hyperlink at 

http://www.iowadnr.gov/waste/index.html

MidAmerican Energy Response (2009): MidAmerican Energy Response to EPA’s Surface Impoundment 

Section 104(e) Request Neal North Generating Station, Sioux City, Iowa, August 31, 2009. Accessed 

Online May 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/mae-neal.pdf Accessed May 2012

Dewberry & Davis (2011): Coal Combustion Waste Impoundment Round 7 - Dam Assessment Final 

Report, George Neal North Energy Center MidAmerican Energy, Sergeant Bluff, Iowa. Dewberry & 

Davis, LLC, May 2011. Accessed Online May 2012.

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

Earthjustice et al., (2008): Comments on the DOE/EPA Report Coal Combustion Waste Management at 

Landfills and Surface Impoundments1994-2004, Prepared in response to: US EPA, Notice of Data 

Availability, 72 Fed. Reg. 49714, August 29, 2007, RCRA Docket No. EPA-HQ-RCRA-2006-0796. 

Submitted by Earthjustice, Clean Air Task Force et al, February 11, 2008. Accessed Online May 2012.

http://www.catf.us/resources/filings/power_plant_waste/NODA082907_Appendix_B_DOEEPA_Report_Hiding_Failed_Regulation_By_States.pdf

MWH Annual Water Quality Report, 2009. MidAmerican Energy Company, Neal North CCR Monofill. 

Accessed Online Oct 2010. Through 

https://programs.iowadnr.gov/solidwaste/reports/DocumentDNA.aspx

MidAmerican Energy, Neal Energy Center Solid Byproduct Management Plan, Sept 2009. Accessed 

Online Oct 2010. Through https://programs.iowadnr.gov/solidwaste/reports/DocumentDNA.aspx

MWH Special Water Quality Report, Results above UCLs and MCLs. Prepared for MidAmerican 

Energy, Neal North CCR Monofill 2009. Accessed Online Oct 2010. Through 

https://programs.iowadnr.gov/solidwaste/reports/DocumentDNA.aspx
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

78

MWH Risk Evaluation for Arsenic in Groundwater 2006. Prepared for MidAmerican Energy Company, 

Neal North CCR Monofill. Accessed Online Oct 2010. Through 

https://programs.iowadnr.gov/solidwaste/reports/DocumentDNA.aspx

MWH Hydrogeological Investigation Report 2006. Prepared for MidAmerican Energy Company, Neal 

North CCR Monofill. Accessed Online Oct 2010. Through 

https://programs.iowadnr.gov/solidwaste/reports/DocumentDNA.aspx

EPA-7-IA-Salix-Woodbury-NSDP-77-004 (1977): Final Environmental Impact Statement for Proposed 

Steam Electric Power Plant George Neal Steam Electric Station Neal Unit #4 Port Neal Industrial District 

Salix, Woodbury County, Iowa, FEIS-004, NPDES Permit No. IA0061857. Prepared by USEPA Region 

VII, in conjunction with U.S. Army Engineer District Omaha, Nebraska, and Rural Electrification 

Administration, January, 1977. Accessed Online May 2012. 

http://nepis.epa.gov/Exe/ZyNET.exe/700004F3.txt?ZyActionD=ZyDocument&Client=EPA&Index=1976

%20Thru%201980&Docs=&Query=%28geology%29%20OR%20FNAME%3D%22700004F3.txt%22%

20AND%20FNAME%3D%22700004F3.txt%22&Time=&EndTime=&SearchMethod=1&TocRestrict=n

&Toc=&TocEntry=&QField=&QFieldYear=&QFieldMonth=&QFieldDay=&UseQField=&IntQFieldOp

=1&ExtQFieldOp=1&XmlQuery=&File=D%3A%5CZYFILES%5CINDEX%20DATA%5C76THRU80

%5CTXT%5C00000010%5C700004F3.txt&User=ANONYMOUS&Password=anonymous&SortMethod

=h%7C-

&MaximumDocuments=10&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display=

p%7Cf&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&M

aximumPages=1&ZyEntry=87

Rowden (2010): The Iowa State-Wide Trace Element Soil Sampling Project: Design and Implementation, 

A Report of the Iowa Component of the United States Geological Survey, Robert D. Rowden, Geologist, 

Iowa Geological and Water Survey, Open File Report 10-1, June 2010. Accessed Online December 2012.

ftp://ftp.igsb.uiowa.edu/igspubs/pdf/ofr-2010-1.pdf

SWRL2 (2009): Iowa Statewide Rural Well Water Survey Phase 2 (SWRL2) Results and Analysis. The 

University of Iowa Center for Health Effects of Environmental Contamination. Submitted to Watershed 

Monitoring and Assessment Section, Iowa Department of Natural Resources, August 2009. Accessed 

Online December 2012.

http://www.cheec.uiowa.edu/research/SWRL2%20results.pdf

Sourcewatch (2013): U.S. District Court, Southern District of Iowa: Sierra Club, Plaintiff, v. 

MidAmerican Energy Company, Defendant, Case No. 13-CV-21-REL-RAW, Consent Decree, January 

16, 2013. In Sourcewatch, George Neal Station North, Footnote #1, web page last updated January 22, 

2013. Accessed Online August 2014.

http://www.sourcewatch.org/index.php/George_Neal_Station_North#cite_note-1
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

79

PTb15. George Neal Station South273 Ash Monofill, Berkshire Hathaway – MidAmerican 

Energy Company, Salix, Woodbury County, Iowa

Type: Landfill (Formerly a Sand and Gravel Pit).

Background and Description: The George Neal South plant has placed coal combustion residual 

(CCR) into an onsite monofill since the early 1980s. The 30-acre landfill was issued a state permit in 

2000, approximately 20 years after it was first used.274 The plant has also a National Pollutant Discharge 

Elimination System (NPDES) permit.275 The plant lies in a rural area next to the Missouri River, south of 

Sioux City, Iowa; it began groundwater monitoring around the landfill in 2000. 

The monofill rests on alluvial sediments about three-quarters of a mile east of the Missouri River. The 

natural direction of groundwater flow is west toward the Missouri River. Paired, shallow (23 to 28 feet 

deep) and deeper wells (49 to 59 feet deep) show very little difference in head, indicating lateral flow is 

dominant with little vertical component. The ash monofill is 20 feet higher than the surrounding area, and 

groundwater mounding may have altered groundwater flow directions in the vicinity of the monofill.276

Impact and Damage Claims: EIP (2010a) indicates that average arsenic concentrations from the 

landfill were above the primary EPA Maximum Contaminant Level (MCL) in onsite down-gradient 

monitoring wells. The report also notes that average concentrations of iron, manganese, and sulfate were 

above secondary EPA MCLs (SMCLs) at various onsite groundwater monitoring wells. 

When a groundwater monitoring program was implemented in 2000, the average concentrations of 

arsenic in two down-gradient wells ranged from 0.011 to 0.035 mg/L, 1.1 to 3.5 times the MCL, and the 

maximum concentration was more than x8 the MCL. High levels of manganese, iron, sulfate, barium, 

selenium, and zinc have also been found in groundwater down-gradient of the landfill. The Iowa 

Department of Natural Resources (IDNR) uses Up-gradient Control Limits (UCLs) to determine the 

spread of contaminants based on historical up-gradient monitoring well concentrations. EIP (2010a) 

indicates that barium, selenium, and zinc have all exceeded the UCLs in wells down-gradient of the 

landfill, indicating the migration of contaminants. There are indications that the only “up-gradient” 

monitoring point (MW4) has been affected by CCR constituents as a result of groundwater mounding 

within the landfill.277

EIP (2010a) claims that MidAmerican Energy did not address the question raised by IDNR (2005) of 

whether there are any off-site receptors such as private residential wells or other uses of water that may be 

 

273 George Neal Station South is located about two-miles south of George Neal Station North. It is fueled with 

Appalachian sub-bituminous coal from Virginia and West Virginia. According to 

http://www.sourcewatch.org/index.php?title=George_Neal_Station_South, the nameplate capacity of the single 

generating-unit Plant (Neal Unit 4, serial with Neal Station North’s Units 1-3; online since 1979) is 640 MW. 

George Neal Station South has a once through cooling system, drawing water from the Missouri River.

274 Earthjustice et al., (2008) claim that the MidAmerican Neal South CCR Landfill permitted in 2000 is located in 

an abandoned sand and gravel pit (IDNR Permit No. 97-SDP-13-98).

275 NPDES Permit No. IA0061859.

276 EIP (2010a).

277 EIP (2010a) claims that the up-gradient monitoring well MW4 is close to the edge of the CCR monofill, and the 

relatively high concentrations of iron, manganese, and sulfate in this well suggest the possibility that it is affected by 

ash constituents as a result of groundwater mounding within the monofill, which is elevated 20 feet above the 

floodplain. There are not enough monitoring wells next to this monofill to determine whether mounding has taken 

place, but mounding is evident at the Neal North CCR monofill which is in a similar hydrogeologic setting. 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

80

adversely affected by the CCR contamination documented at the Neal Station South Ash Monofill. Data 

obtained from the University of Iowa’s GIS department shows a total of two public drinking water 

sources within a two-mile radius of Neal South.

According to both IDNR278 and MidAmerican Energy,279 the background levels of arsenic naturally 

exceed the MCL at the site. Late in 2010, a series of tests were conducted to evaluate water quality 

downriver in the Missouri River and at two drinking water wells close to the power plant site. In all these 

sites, arsenic levels were below EPA’s drinking water standards. Further review of annual groundwater 

quality reports for this site has identified several instances of contaminant levels being misrepresented in 

EIP (2010a) by failing to consider background levels, citing data outliers as current site conditions, and 

due to incorrect application of current up-gradient control limits.

According to MidAmerican Energy,280 multiple studies have reported arsenic is a common constituent in 

groundwater and soil in the state of Iowa.281 The IDNR Study Report noted, “because of the high 

percentage of detections (100%) and the state-wide distribution of arsenic in the soil, it is thought to be 

naturally occurring from the breakdown of arsenic bearing minerals, such as pyrite, in the glacial till and 

rock parent material.” A review of contour maps indicate that soil surrounding the George Neal Station 

facilities has some of the state’s highest concentrations of arsenic from naturally occurring sources.

Evaluation against Proven Damage Criteria282

 

278 IA DNR comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0236.

279 MidAmericam Energy comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0233. 

According to Rowden (2010), The mean concentration of arsenic in the soil samples was three orders of magnitude 

greater than typical arsenic concentrations found in surface water samples collected across Iowa by the

USGS and the IDNR (www.igsb.uiowa.edu/web apps/iastoret/, no longer accessible). In a recent groundwater study, 

48 percent of the water samples from Iowa rural drinking water wells contained arsenic, with eight percent of the 

samples containing arsenic at levels above the USEPA maximum contaminant level (MCL) of 10.0 ppb for public 

water supplies [SWRL2 (2009)].

280 MidAmericam Energy comment to the 2011 NODA docket, ibid.

281 E.g., University of Iowa and others’ statewide private wells studies in 2004 and 2006-2008, and IDNR 2010 

study on the geochemistry of soil samples collected from across the state [Rowden (2010)]. According to Table 3 of 

that study, using inductively coupled plasma-atomic emission spectrometry/acid dissolution (ICP40), the arsenic 

median concentration and standard deviation of statewide shallow soil samples are 8.40± 2.70 ppm, and the

corresponding statewide values for deep soils are 9.50 ± 3.25 ppm. Using ICP40 or atomic absorption spectrometry

(AA), the median arsenic levels in northwestern Woodbury County range between 12-13 ppm (ICPM40) or between 

10-12 ppm (AA) for the shallow soil samples, respectively, and between 13-14 ppm (ICPM40) or between 13-15 

ppm (AA) for the deep soil samples.

282 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 arsenic. 

 Onsite groundwater data exceeded EPA SMCLs 

for iron, sulfate, 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)

 None
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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Resolution: According to EIP (2010a), despite high levels of arsenic and other contaminants in downgradient shallow groundwater, IDNR has not required any off-site monitoring, or even monitoring at an 

appreciable distance from the ash ponds. IDNR has not taken any enforcement actions with respect to the 

contaminated groundwater. However, in 2005 IDNR requested that future groundwater reports 

fromMidAmerican Energy discuss the potential for groundwater mounding under the landfill, evaluate if 

listed wells are truly ”upgradient,” and discuss potential for migration and possible receptors. 

MidAmerican Energy’s 2008 Annual Water Quality Report, however, does not address any of these 

points.

USWAG claims283 that this site does not qualify as a damage case.

ICF (2010) Rationale: 284 Potential Damage. <Groundwater exceedances of the primary EPA MCL for 

arsenic and the SMCL for iron, sulfate, and manganese 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 #6, 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 #6. ICF, 10/2010.

US EPA, Facility Registry System, Facility Detail Report, MidAmerican Energy Co Neal South. 

Accessed Online Oct 2010. 

http://iaspub.epa.gov/enviro/fii_query_dtl.disp_program_facility?p_registry_id=110000414114

State documents accessed at Solid Waste Database hyperlink at 

http://www.iowadnr.gov/waste/index.html including:

 

283 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 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. 

MidAmerican tested the groundwater and surface water in various locations of the Missouri River, drinking water 

wells, and the drinking water systems at both George Neal Station North and George Neal Station South on August 

30 and 31, 2010.... Where there were detectable levels of arsenic in the samples, they were still below the drinking 

water standards (i.e., MCLs) – meaning that the raw river water and raw well water at or around the two George 

Neal Station sites meets USEPA drinking water standards for arsenic. The actual processed drinking water at both of 

the sites was below detectable levels.” The same information is also cited in MidAmerican Energy’s comment to the 

October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0233.

284 ICF’s (2010) writeup is based on viewing pertinent IDNR documents and a telephone call to Nina Koger, 

IDNR’s Permitting Department, October 25, 2010.

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 I (Cases 1-32) December 2014

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MWH Annual Water Quality Report, 2009. Prepared for MidAmerican Energy Company, Neal South 

CCR Monofill. Accessed Online Oct 2010. Through 

https://programs.iowadnr.gov/solidwaste/reports/DocumentDNA.aspx

MidAmerican Energy, Neal Energy Center Solid Byproduct Management Plan, Sept 2009. Accessed 

Online Oct 2010. Through https://programs.iowadnr.gov/solidwaste/reports/DocumentDNA.aspx

MidAmerican Energy 2001 Baseline Water Quality Report. Accessed Online Oct 2010. Through 

https://programs.iowadnr.gov/solidwaste/reports/DocumentDNA.aspx

Montgomery Watson Hydrogeological Investigation, Groundwater Monitoring Plan and Baseline 

Groundwater Quality Report, December 1999, Prepared for MidAmerican Energy Company, Neal South 

Ash Landfill. Accessed Online Oct 2010. Through 

https://programs.iowadnr.gov/solidwaste/reports/DocumentDNA.aspx

Rowden (2010): The Iowa State-Wide Trace Element Soil Sampling Project: Design and Implementation, 

A Report of the Iowa Component of the United States Geological Survey, Robert D. Rowden, Geologist, 

Iowa Geological and Water Survey, Open File Report 10-1, June 2010. Accessed Online December 2012.

ftp://ftp.igsb.uiowa.edu/igspubs/pdf/ofr-2010-1.pdf

SWRL2 (2009): Iowa Statewide Rural Well Water Survey Phase 2 (SWRL2) Results and Analysis. The 

University of Iowa Center for Health Effects of Environmental Contamination. Submitted to Watershed 

Monitoring and Assessment Section, Iowa Department of Natural Resources, August 2009. Accessed 

Online December 2012.

http://www.cheec.uiowa.edu/research/SWRL2%20results.pdf

Earthjustice et al., (2008): Comments on the DOE/EPA Report Coal Combustion Waste Management at 

Landfills and Surface Impoundments1994-2004, Prepared in response to: US EPA, Notice of Data 

Availability, 72 Fed. Reg. 49714, August 29, 2007, RCRA Docket No. EPA-HQ-RCRA-2006-0796. 

Submitted by Earthjustice, Clean Air Task Force et al, February 11, 2008. Accessed Online December 

2013.

http://www.catf.us/resources/filings/power_plant_waste/NODA082907_Appendix_B_DOEEPA_Report_Hiding_Failed_Regulation_By_States.pdf

PTb16. Mill Creek Station, Louisville Gas and Electric (LG&E), Louisville, Jefferson 

County, Kentucky

Type: Landfill, Surface Impoundment, and FGD Processing Ponds.

Background and Description: The Mill Creek Plant, with a gross generation-capacity of 

approximately 1,600 MW, is located in the Kosmosdale neighborhood of Louisville, Kentucky, about 20 

miles southwest of Downtown Louisville.285 The Plant has been disposing of coal combustion residuals

(CCRs) from Louisville Gas and Electric (LG&E) in landfills since 1972.286 The first two phases of the 

 

285 14660 Dixie Hwy., Louisville, KY 40272.

286 According to O’Brien & Gere (2009), the plant is comprised of four coal-fired electric generating units 

commonly referred to as Unit 1, Unit 2, Unit 3, and Unit 4. Units 1 and 2 began operating in 1974, while Unit 3 was 

brought online in 1978 and Unit 4 went into service in 1982. According to http://www.lge-ku.com/plant_info.asp, 

the Plant’s net summer capacity is 1,472 MW. Mill Creek burns approximately 5 million tons of coal annually. Most 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

83

landfill were unlined since they were permitted as “inert” by the Kentucky Division of Waste 

Management (KDWM). In 2009, a third phase was constructed with a composite liner, and the total area 

of the landfill reached 185 acres.287 The landfill, located on the north side of the power plant and 

approximately 175 feet from the Ohio River, receives fly ash, bottom ash, and FGD gypsum.288

Additionally, there is a 79 acre ash pond289 (in receipt of bottom ash, fly ash, boiler slag, flue gas 

desulfurization sludge, coal fines, process water drainage, and pyrites) and four flue gas desulfurization 

(FGD) processing ponds (2 acres or less each) located onsite.290 Groundwater has been monitored around 

the landfill since 1994;291 however, no offsite assessment or monitoring has been required. Neither the 

KDWM nor the Kentucky Division of Water (KDOW) requires groundwater monitoring of the ash pond; 

however, plant production wells (PW-1, PW-2, and PW-3) south of the pond can be used as indicators of 

CCR constituent migration from the ash pond. The ash pond discharges ultimately outfall to the Ohio 

River under KPDES permit # KY0003221.

The Ohio River Alluvium, predominantly Pleistocene glacial-outwash sediments, consists of 

unconsolidated sand, gravel, silt and clay deposits along the river. The coarse sand and gravel beds supply 

large volumes of water to industrial, municipal, and domestic wells. Sediments in the Ohio River 

floodplain in Jefferson County generally yield 200 - 500 gal/minute in most wells that penetrate the full 

thickness of alluvium and over 1,000 gal/minute in large-diameter wells.292 Groundwater can migrate 

quickly through these coarser sediments and consequently is rated as highly sensitive to pollution.293

Impact and Damage Claims: EIP (2010a) indicates that levels of arsenic exceeded the primary EPA 

Maximum Contaminant Level (MCL) in onsite groundwater.294 Additionally, in 1996 and 2009 

monitoring data of sulfate and total dissolved solids (TDS) exceeded secondary EPA MCLs (SMCLs) in 

onsite groundwater. EIP (2010a) also indicates that nine wells onsite have groundwater parameters that 

 

coal (Illinois Basin bituminous coal—much of it mined in West Kentucky) was delivered in 100-ton railroad hopper 

cars until 1983, when the company's first permanent coal-barge unloading facility was constructed at the plant. Mill 

Creek Station produces over 650,000 tons of gypsum scrubber by-product per year in an onsite processing plant

(http://www.eon-uk.com/about/949.aspx), and plans on selling some of it for the manufacturing of sulfur fertilizer 

(http://wfpl.org/post/lge-announce-plans-reuse-coal-byproducts-mill-creek).

287 According to the LG&E and KU Energy comment to the October 2011 NODA (EPA-HQ-RCRA-2011-0392-

0251), the composite liner of the newly expanded landfill has a drainage collection layer and a compacted clay liner. 

The latter ‘likely’ has a permeability of less than 1 x 10-6cm/sec and significant cation exchange capacity.

288 According to the KDWM, CCR in landfill Sites A, B, and C will eventually cover the entire property except 

where the plant structures and ash pond exist. Site B was the original landfill that was constructed in 1980 and was 

operated until 1990. Disposal in Site A, situated along the Ohio River, began in 1990 and is still active. The Site A 

landfill was vertically expanded in 2004. Site C is a lateral expansion that was commissioned in 2009, and is used 

concurrently with Site A.

289 According to O’Brien & Gere (2009), sited on natural clay substrate but without a liner.

290 These ponds were commissioned in the late 1970s and early 1980s. They receive wastes associated with the FGD 

system, a gypsum processing unit, cooling tower blowdown, and storm water runoff (O’Brien & Gere, 2009). Solids 

are periodically removed from at least one of the ponds that takes gypsum waste water and disposed in the on-site 

landfills. The KDWM does not regulate these ponds and as a result, there are no monitoring data, nor information on 

whether they are lined.

291 According to EPA-HQ-RCRA-2011-0392-0251, the current groundwater monitoring program or the substantial 

equivalent have been in place since 1981 and have resulted in nearly 200 sample collection events for each well and 

a similar number of opportunities to evaluate groundwater flow direction. 

292 Carey and Stickney (2005), http://www.uky.edu/KGS/water/library/gwatlas/Jefferson/GWavailability.htm

293 Ray et al., (1994).

294 Groundwater has been contaminated with arsenic at x1.5 the federal MCL in three wells down-gradient from the 

landfill and ash pond adjacent to the Ohio River.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

84

exceed one or more drinking water standards and that the horizontal extent of contamination is one-mile 

wide. 

LG&E claims295 that groundwater monitoring conducted at the site since 1982 has not identified an 

exceedance of a primary MCL at any off-site location. Furthermore, there is no significant potential for 

adverse impacts on local water supplies. The groundwater flow for the location is in the direction of the 

Ohio River and there are no residential wells (or non-company owned properties) between the plant and 

the river. All local households are connected to public water supplies. KDEP presents arguments in 

support of LG&E’s claims concerning the confinement of the groundwater impacts to the utility’s 

property, as a result of which it is highly unlikely to affect any domestic groundwater well users. Past 

reports that surveyed off-site potential drinking water locations in the area found two domestic wells and 

nine industrial wells near the facility, but all were up-gradient.296 In addition, KDEP claims, concerning 

EIP’s (2010a) allegations that arsenic levels (0.015 mg/L) exceed the MCL of 0.01 mg/L, that the last 

KDEP analyses report (May 6, 2011) shows 0.0019 mg/L arsenic for the down-gradient MW-6 and 

0.00635 mg/L for the up-gradient MW-3.

Elsewhere, LG&E and KU Energy LLC claim297 the following: (i) the Utility does not deny SMCL 

exceedances. (ii) By alleging that arsenic exists in three wells down-gradient of a CCR landfill at the Mill 

Creek site at levels x1.5 the Primary MCL, EIP (2010a) fails to acknowledge that similar MCL 

exceedances for arsenic were observed in other compliance wells before landfilling activities began and in 

background wells, suggesting that arsenic levels at the site may be at least partly the result of naturally 

occurring conditions. Also, prior to 2001, the arsenic MCL was still 0.05 mg/L. (iii) Considering that the 

six CCR metals (arsenic, cadmium, chromium, lead, mercury, and selenium) were routinely monitored by 

LG&E for a 16-year monitoring period (1981 to 1996) over more than 20 episodes in each of six downgradient wells at the site, the five specific events with a Primary MCL exceedance cited by EIP (2010a) 

constitute fraction of a percent chance of the analytical outcome resulting in a value that was sufficient to 

merit an expression of concern. With perspective, this information does not indicate a pattern of 

contamination or a trend towards the endangerment of human health. (iv) All groundwater effects 

attributed to CCR storage and handling were confined to the site itself and did not extend off site. The 

findings of a 2006 well survey of potential users for properties within one mile of the facility, and a risk 

evaluation and river sampling required by KDWM, all demonstrate that the effects of CCR management 

at the site would not negatively affect human health or water quality in the Ohio River. These findings 

support the conclusion that extensive data with respect to on-site conditions render further off-site 

investigation unnecessary.

Evaluation against Proven Damage Criteria298

 

295 LG&E and KU Energy, comment to the Proposed Rule docket, virtual pp. 15-16, 

http://www.uswag.org/pdf/2010/CCR%20Comments/LGEKE11192010.pdf

296 Comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0219.

297 Comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0251.

298 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 

 Onsite groundwater data exceeded the primary EPA 

MCL for arsenic.

 Onsite groundwater data exceeded EPA SMCLs for 

sulfate and TDS.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

85

Other Considerations

 The CCR landfill permit issued by KDWM requires that onsite monitoring occur semi-annually; 

however, no offsite investigations have been required. 

 There are reportedly 15 private wells within a two-mile radius and four public wells within a fivemile radius of the landfill. 

 The 79 acre fly ash pond is rated a high hazard by EPA due to its close proximity to a residential 

development and a school. The embankment failed in 1978 during a flood; however, no release of 

CCRs occurred.

 The USEPA classified this site as “Indeterminate” in its 2007 damage case report due to 

insufficient information.299 However, USWAG’s claim that there has been no new information 

since to support groundwater impacts is factually incorrect.300

Resolution: According to EIP (2010a), KDWM required Mill Creek Plant to conduct groundwater 

assessment monitoring in October 1996 due to elevated indicator parameters. A groundwater assessment 

report was submitted on September 10, 1997. By November 12, 1997, the Mill Creek Plant had returned 

to normal detection monitoring. Apparently, the KDWM has never required any off-site sampling, any 

off-site drinking water well investigations, or on-site corrective actions.

KDEP claims301 that the groundwater flow from the ash pond is to the Ohio River, and because the plant 

owns the land, there are no residential drinking water wells between the pond and the river. The samples 

exceeding arsenic are from on-site wells. Kentucky has discretion under 401 KAR 45:160 Sect.1, to 

require or not require a groundwater corrective action, based on which the owner/operator is currently not 

required to perform a corrective action. The ash pond is subject to a permit-by-rule under 401 KAR 

45:060, i.e., it has a permit as long as its KPDES permit is current. The data quoted in EIP (2010a) is 

from the landfill permit. Due to the direction of groundwater flow towards the river, only the wells next to 

the Ohio River down-gradient from the power plant may be of some interest and those are most likely 

industrial wells. Past reports that surveyed off-site potential drinking water locations in the area found two 

domestic wells and nine industrial wells near the facility, but each was upgradient. Households in the 

Louisville-Jefferson County Metro area are connected to municipal drinking water lines.

 

299 USEPA (2007), Table 2.

300 According to EIP (2010a), the May 2009 groundwater sampling of monitoring wells around the ash landfill 

detected exceedances of TDS (in landfills Sites A, B, and the just installed MW-11, next to the newly opened Site C) 

and of sulfate (in Sites A and B). As stated under Resolution above, KDEP has acknowledged sulfate and chloride 

exceedances (MW-6) in a May 2011 sampling.

301 Kentucky Department of Environmental Protection comment to the proposed CCR rule docket: EPA-HQ-RCRA2009-0640-6260, and Kentucky DEP, Division of Waste Management’s comment to the October 2011 NODA 

docket: EPA-HQ-RCRA-2011-0392-0219.

migrated to the extent that they could cause human 

health concerns

 Nine wells onsite have parameters that exceed one 

or more drinking water standards.

 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

.
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KDEP states302 that the Commonwealth required assessment monitoring for high sulfates levels. Since 

sulfate is an SMCL, the Commonwealth allowed continued monitoring based on the condition that 

sulfates remain below the SMCL of 250 mg/L. Sulfates in MW-6 are at 570 mg/L based on the last 

groundwater monitoring report (May 6, 2011). Using the ANOVA statistical method, chloride is at 776 

mg/L; because it is statistically significant, KDEP is currently evaluating this information.

USWAG claims that this site does not qualify as a damage case.303

ICF (2010) Rationale: Potential Damage. <Groundwater exceedances of primary and secondary EPA 

MCLs have been found onsite. Additionally, several other groundwater parameters have exceeded 

drinking water standards onsite. There has not been any assessment of groundwater or surface water 

offsite and there are no other impact or damage claims. Onsite monitoring is required semi-annually; 

however, there are no other regulatory corrective actions, administrative rulings, or court decisions 

associated with the 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 #11, 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 #11. ICF, 10/2010.

USEPA (2007): Coal Combustion Waste Damage Case Assessments, July 2007. Accessed Online May 

2012.

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

O’Brien & Gere (2009): Final Report Dam Safety Assessment Report of CCW Impoundments LG&E 

Mill Creek Station, Lockheed Martin, December 2009. Accessed Online May 2012.

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

 

302 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0219.

303 Comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211): “The Kentucky Division of Waste

Management (KDWM) required Mill Creek Plant to conduct groundwater assessment monitoring in October 1996 

due to elevated indicator parameter concentrations. In response, a groundwater assessment report was submitted on 

September 10, 1997. There are no other citations or information related to regulatory actions in the Reference 

Document.

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 (USEPA. 

2007. 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 Reference Document. 

There are no human or ecological receptors between the points of alleged on‐site MCL exceedances and the Ohio 

River. Additionally, groundwater in the area is not being used as a drinking water resource. Finally, the cited 

groundwater assessment and associated investigations found no indications of potential off‐site effects associated 

with the management of CCRs. Landfill Site C was constructed in 2009 and is currently in use, along with Site A 

(Written communication, Louisville Gas and Electric Company. November 2 and November 9, 2011.)”
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Ray et al., (1994): Groundwater Sensitivity Regions of Kentucky, Joseph A. Ray James S. Webb Phillip 

W. O'dell, Kentucky Department for Environmental Protection, Division of Water, Groundwater Branch. 

Interpreted by Scale1:500000, 1994. Accessed Online December 2012.

http://kgs.uky.edu/kgsweb/download/wrs/sensitivity.pdf

Carey and Stickney (2005): Groundwater Resources of Jefferson County, Kentucky, Daniel I. Carey and 

John F. Stickney, County Report 56, Series XII, Kentucky Geological Survey, University of Kentucky, 

2005. Accessed Online December 2012.

http://www.uky.edu/KGS/water/library/gwatlas/Jefferson/Jefferson.htm

PTb17. Shawnee Fossil Plant, Tennessee Valley Authority, Paducah, McCracken County, 

Kentucky

Type: Landfills (Dry Ash Stacking Area) and Surface Impoundments.

Background and Description: The Shawnee Fossil Plant304 is located 10 miles west of the City of 

Paducah,305 Kentucky, along the south side of the Ohio River. The Plant has disposed of coal combustion 

residual (CCR) from the Tennessee Valley Authority’s (TVA) plant in two unlined surface 

impoundments,306 one of which was commissioned in the late 1950s and the other, in 1971; and in unlined 

landfills (Consolidated Waste Dry Stack, CWDS), since 1984.307 The facility utilizes one impoundment 

 

304 The Shawnee Fossil Plant is located in the Jackson Purchase Region of western Kentucky, which represents the 

northern tip of the Mississippi Embayment portion of the Coastal Plain Province. According to TVA’s Shawnee 

Fossil Plant website: http://www.tva.com/sites/shawnee.htm, Shawnee has nine active coal-fired generating units, 

with nameplate capacity of 175 MW each, with a summer net capability of 1,206 MW. One unit (#10) at Shawnee 

was idled in October 2010. Shawnee Units 1 and 4 either will be converted to renewable fuel (biomass), controlled 

by adding scrubbers and selective catalytic reduction systems, or retired by December 31, 2017. This decision 

follows violations by TVA of the New Source Review requirements pursuant to the Clean Air Act amendments of 

1977, and agreements between TVA and EPA, 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. 

The first generating unit went into operation in April 1953. By October 1956, all ten of the plant’s coal 

units were generating power. Unit 10 is the site of the first U.S. demonstration of a commercial scale atmospheric 

fluidized bed combustion (AFBC) boiler for using high-sulfur coal. The plant consumes some 9,600 tons of coal a 

day.

305 The Shawnee Fossil Plant is located about three miles north of DOE’s Paducah Gaseous Diffusion Plant (PGDP), 

at 7900 Metropolis Lake Road, West Paducah. Since 1955, PGDP has been supplying enriched uranium for 

commercial reactors and military defense reactors. In the fall of 1988, DOE and the EPA entered into an 

"Administrative Order by Consent" under Sections 104 and 106 of CERCLA to address the PGDP’s off-site 

contamination. On June 30, 1994, EPA placed PGDP on the National Priorities List (NPL).

306 According to TVA (2009a), Ash Pond No. 1, going back to the Plant’s inception in the 1950s, was taken out of 

service in 1971. The active Ash Pond (No. 2) occupies over 142 acres and has a storage capacity of over 4.7 million 

cubic yards. Persistent seepage along the northeastern toe of the dike’s slope has been reported for over 20 years.

Northeast of the CWDS there is a 29-acre Inactive Dredge Cell, which between 1983 and 1984/5 received some 

750,000 cubic yards of dredged ash from Ash Pond No. 2. It was drained and closed following the collapse of the 

interior (coal-ash constructed) dike that separated it from Ash Pond No. 2.

307 For a Site Location Map and Photo Location Plan, see O’Brian & Gere (2013), Figures 1 and 2, respectively.

According to TVA (2009a), approximately 600,000 tons of dry ash is collected in silos each year and hauled to an 

onsite dry stack disposal area (Consolidated Waste Dry Stack, CWDS). Approximately 40,000 tons per year of 
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known as Ash Pond No. 2 for liquid-borne CCR management. Ash Pond No. 2 was initially constructed 

over native clay in 1971 with 15-foot high compacted clay dikes.308 Water that is routed through Ash

Pond No. 2 is discharged from the stilling basin via a multi-riser structure which outfalls into an outlet 

channel and ultimately back to the Ohio River. The discharge is permitted under Kentucky Pollutant 

Discharge Elimination System (KDPES) Permit No. KY0004219.309

Recently, the Kentucky Division of Waste Management (KDWM) permitted the expansion of the landfills 

without a liner, which are designated as “special waste landfills.” The landfills and fly ash ponds are 

located approximately 500-700 feet from the south shore of the Ohio River just east (upstream) of the 

confluence of the river and Bayou Creek, and groundwater from the site discharges to surface water via 

Little Bayou Creek (LBC) located onsite. Groundwater was assessed onsite already in the 1980s, but 

consistent monitoring began only in 2003. No offsite groundwater data are available.

The predominant natural physiographic features of the site are the recent floodplain of the Ohio River and 

the low upland terrace developed on loess deposits.310 The floodplain along the south bank of the river 

averages about 2,000 feet in width and generally lies at or above approximately 320 feet AMSL. The 

floodplain is characterized by a natural levee immediately adjacent to the river and a lower, locally 

swampy area, extending south of the levee to the base of the upland terrace. At the southern margin of the 

floodplain, the topography rises some 20 to 30 feet to a relatively flat upland terrace bench. Most of the 

plant facilities are situated on this terrace.

Plio-Pleistocene-age alluvial terrace deposits lie directly below the ash and fill deposits over a large 

portion of the site, including the dry ash stacking facility. Most of the loess originally present above the 

terrace deposits is believed to have been removed during construction of the former ash pond. The upper 

portion of the terrace deposits are characteristically fine-grained and lenticular, consisting of variable 

mixtures of clay, silt, and fine sand. Thickness of the upper terrace sediments ranges from 4 to 25 feet and 

averages 9 feet in the landfill area. These sediments are distinct from the lower part of the terrace deposit, 

which is composed predominantly of rounded chert gravel with sand and very minor amounts of clay and 

silt. Occasional sand lenses occur within the gravel unit, and fairly continuous micaceous sand was 

encountered below the gravel layer at most borings. The lower gravel unit and associated sand layers are 

 

bottom ash is wet-sluiced to the Active Ash Pond No. 2. Dewatered bottom ash is reclaimed from the Active Ash 

Pond No. 2 and stacked within the CWDS. The CWDS was constructed (with a slight offset) over the original Ash 

Pond No. 1. The CWDS was horizontally expanded in 2009 to a total area of 200 acre and over 33 million cubic 

yards of storage capacity. Currently 80-100 feet high, the new expansion would attain an ultimate height of 270 feet. 

Note: Based on an interview with a KDWM regulator, EIP (2010a) cites two contiguous CCR landfills designated as 

“special waste landfills” under the same permit, mentioning that both landfills are active although one is nearing 

closure (the one closest to the coal ash ponds has a partial final cover), while the other was approved for operation 

by KDWM in 2007. It is probable that the apparent inconsistency between these two sources can be reconciled by 

assuming that what TVA (2009a) cites as a single CWDS unit that has been recently laterally expanded is 

considered in EIP (2010a) as two discrete cells of the same landfill. For additional information on the Shawnee 

Fossil Plant’s waste handling system and the 1989-1990 mechanical modifications to Units 1 and 4, see Section 3.2 

in TVA (2005) and EIP (2011), respectively.

308 According to O’Brian & Gere (2013), the pond’s pool area is 142 acres. The dikes were reportedly raised 10 feet 

using the upstream method of dike raising with compacted clay fill, founded partially on bottom ash and partially on 

the original dike crest. Originally and up to about the mid-1980’s, the ash pond received both sluiced bottom ash and 

fly ash, but later only received sluiced bottom ash. Bottom ash is wet sluiced into the pond via influent lines located 

at the southeast corner of the impoundment. The bottom ash is periodically dredged from the influent channel using 

long-stick excavators, which place the material in stockpiles within the eastern portion of the impoundment.

309 O’Brian & Gere, ibid.

310 TVA (2005).
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commonly referred to as the Regional Gravel Aquifer (RGA), the principal aquifer in the site region. 

Borings in the landfill area indicate RGA thicknesses of 30 to 65 feet, with an average thickness of 47 

feet. Regionally, the RGA is thinnest near the Ohio River, with thickness increasing with distance from 

the river.311

Bedrock at the site consists of the Upper Cretaceous and Tertiary-age Clayton and McNairy Formations, 

comprising fine- to medium-grained quartz sand inter-bedded with micaceous clay.312 They are underlain 

by Mississippian–age Warsaw limestone, which lies at an approximate elevation of 6 feet AMSL. 

Bedrock surface dips to the southwest toward the axis of the Mississippi Embayment.313

Groundwater monitoring comprises 14 wells: four wells (D-8A, D-11, D-19, and D-27) have been in 

place since the late 1987-1988, whereas the other ten wells were installed in 2007. Unlike other TVA 

plants, the monitoring wells at Shawnee are screened in three distinct aquifers under the plant: the alluvial 

aquifer, the Upper Continental Deposits (UCD), and the Regional Groundwater Aquifer (RGA). 

According to EIP (2010a), the uppermost water-bearing zones are alluvial aquifers consisting of a 

perched water table underlain by a lower aquifer that intersects the adjacent Little Bayou Creek. The 

perched water table has a negative groundwater gradient, whereby the contaminated shallow groundwater 

migrates into the lower aquifer. Groundwater potentiometric surface maps from 2000 and 2004 show 

mounded groundwater beneath the CWDS and a radial groundwater flow from that high point; the radial 

groundwater flow directions are influenced by the adjacent stream bank groundwater storage.314 

Impact and Damage Claims: According to TVA (2005), the dry ash stacking area is the primary focus 

of groundwater quality impacts. EIP (2010a) indicates that levels of arsenic and selenium exceeded the 

primary EPA Maximum Contaminant Levels (MCLs) in onsite groundwater. Additionally, sulfate and 

total dissolved solids (TDS) exceeded secondary EPA MCLs (SMCL), and boron exceeded the EPA 

Lifetime Health Advisory Level in onsite groundwater.315 EIP (2010a) also indicates a reddish leachate 

 

311 TVA (2005). According to Clausen and Richards (1994), measured hydraulic gradients within the RGA are very 

low, on the order of 1 x 10-4across the entire PGDP site. Localized areas of increased gradient occur near the Ohio 

River and the Pleistocene terrace. Slug test pumping well test and computer modeling indicate the hydraulic 

conductivity of the RGA ranges from 10-4to 1 cm/s. Assuming porosity of 0.3 and the above data flow, they 

estimate velocities within the RGA to be on the range of 0.3 to 2.7 m/day.

312 TVA (2009a).

313 TVA (2005). For additional information on the geology and geohydrology of McCracken County and the 

Paducah area, see Free et al., (1957), Hopkins (1966), Clausen and Richards (1994), Clausen et al., (1995), and 

Carey and Stickney (2005).

314 EIP’s (2010a) hydrogeologic summary is endorsed by TVA in its comment to the 2011 NODA docket (EPA-HQRCRA-2011-0392-0208). According to Section 3.4.1 in TVA (2005), groundwater potentiometric levels measured 

on June 27, 2000 in the RGA indicate mounding of the potentiometric surface in the dry stack area. Potentiometric 

levels range from about 316 to 317 feet AMSL at the perimeter of the landfill to a maximum of approximately 323 

feet AMSL near its center. The overall potentiometric surface configuration suggests that groundwater originating 

within the limits of the dry ash stack ultimately discharges to LBC and to the Ohio River. 

315 Arsenic and selenium exceeded the MCLs in onsite groundwater (by up to x1.2 and x1.7, respectively); sulfate 

and TDS exceeded the SMCL (by up to 5.6 and x4, respectively), and boron exceeded the EPA Lifetime Health 

Advisory Level (by up to x7.5) in onsite groundwater. According to TVA Inspector General (2011), Shawnee had 

Maximum Contaminant Level exceedances for boron repeated throughout the two years of monitoring reports that 

were reviewed. However, the monitoring reports noted that the data used in computing the mean boron value is over 

17 years old. Additionally, Shawnee’s personnel have said that background data has been insufficient to monitor for 

statistical exceedances. According to Shawnee’s personnel, TVA has installed new monitoring wells at Shawnee and 
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has been seeping into Little Bayou Creek onsite, which discharges into the Ohio River a few hundred feet 

downstream. Finally, EIP (2010a) infers that TVA contaminants have affected Metropolis Lake, a natural 

meander cutoff east of the site, where a fish-consumption advisory has been issued by the Kentucky 

Department of Fish & Wildlife Resources because of mercury and PCBs in fish tissue.316

Following the expansion of the groundwater monitoring well system in September 2008 from three to 14, 

semi-annually sampled wells (eleven of which are down-gradient), and an increase in the number of 

parameters analyzed, additional evidence for recent (2008-2010) groundwater impacts has emerged:317

based on the 2008 monitoring data, in two of the down-gradient wells levels of arsenic and selenium 

exceeded the MCLs in onsite groundwater, and all 14 wells exceeded at least one of the following 

SMCLs: boron, sulfate, and TDS (the impact on the three up-gradient wells is attributed to groundwater 

mounding). Groundwater data from 2009/2010 detected new MCL exceedances, including beryllium in 

one well (5.8 ppb), chromium in one well (150 ppb), and lead in one well (120 ppb, eight times the 

MCL). Exceedances of other health-based guidelines were also identified for cobalt, nickel, molybdenum, 

and vanadium. EIP (2010a) states there are reportedly 24 private wells within a two-mile radius of the 

Site.

In general, wells with the highest contaminant concentrations were located the closest to CCR disposal 

areas. According to KDWM, with the exception of a single well, there are no wells adjacent to CCR 

disposal areas that have not been affected by CCR because of the radial groundwater flow component 

from those areas.318

Two springs on-site that are contaminated with TCE and technetium from the Paducah Gaseous Diffusion 

Plant (PGDP) are groundwater discharge points for a 3-mile long groundwater plume.319 Whereas TVA 

presents correspondence from KDEP which affirms the radiologic, TCE and PCB impacts from the 

 

developed background levels. Background levels are required by Kentucky regulations and are used to determine 

exceedances. The exceedances for boron did not result in an assessment.

316 Citing from EIP (2010a): “The well nearest the lake, well D-77, is at times hydraulically downgradient from the 

plant and CCW disposal areas. Exceedances of MCLs and SMCLs have been measured at this well.”

317 Risky Business (2011), Page B.4; and Quarles and Segall (2010). TVA did not begin performing site-wide upgradient-down-gradient statistical analyses until 2010, after it had eight quarters of quarterly monitoring data from 

the new wells. After statistically analyzing the limited available data, TVA observed that the majority of wells in the 

UCD and RGA aquifers showed “statistical exceptions” for boron, pH, sulfate, and other parameters; “The 

prevalence of elevated levels of boron, sulfate, and TDS compared to background suggests that local groundwater 

might be affected by coal combustion byproduct leachate.” Results of 2010-2012 samplings indicate that manganese 

values in down-gradient wells (e.g., Well D-75A: 64-69 mg/L) are higher between one- and three-orders of 

magnitude as compared to corresponding levels in up-gradient wells, and for boron - between one- and two-orders 

of magnitude (e.g., Well D-76A: 15-25 mg/L) as compared to corresponding levels in up-gradient wells. See Tables 

11-2 and 11-3, there. 

318 The least impacted is the background well D-19, located the farthest from the CCR disposal areas, with the only 

reported exceedance being pH. KDEP, as presented in TVA’s comment to the docket EPA-HQ-RCRA-2011-0392-

0208, believes that the only well representative of groundwater baseline is D-77. In light of statistically significant 

increase (SSI) of concentrations of total organic carbon (TOC) and chemical oxygen demand (COD) in the Site’s 

groundwater monitoring well data from 2003 to 2008, KDWM acknowledges that higher than normal concentrations 

of TOC and COD are commonly found in groundwater associated with CCR sites in Kentucky.

319 Areas of contaminated groundwater within the RGA extend beyond the PGDP/DOE property boundary on the 

north and northeast. These areas are referred to as the Northwest and Northeast Plumes, respectively. A portion of 

the Northwest Plume discharges to Little Bayou Creek, a perennial surface water body located northeast of the DOE 

property. For the extent and reach of the PGDP’s RGA plumes (TCE, its degradation products, and Technetium-99) 

three miles towards the Ohio River and TVA’s Shawnee Station area, see: Figure 1 in Clausen and Richards (1994), 

figure 1.3 in Focused Feasibility Study (2010), and Explanation of Significant Differences to the ROD (2010). 
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PGDP, which cause mutations in populations of midge larvae, KDEP also asserts that TVA, in the 

groundwater assessment they did in the 1980s, determined that the whole site has groundwater issues 

caused by CCR.320 Elsewhere, KDEM states321 that most of the shallow groundwater impact appears to be 

caused by the Ohio River.

The Kentucky Department of Water (KDOW) is critical of the data that EIP (2010a) chose to present for 

demonstrating primary MCL exceedances,322 suggesting that the highest values were selected from the 

facility’s reporting without evaluating first whether the exceedance was statistically credible. For 

example, (i) regarding the presence of “selenium at almost twice the federal drinking water MCL”, 

KDOW claims there are no current MCL exceedances for selenium: the most recent, highest data point 

was 0.009 mg/L in Well D-74B while the MCL is 0.05 mg/L. (ii) Regarding the presence of “arsenic 

slightly exceeding the MCL”, KDOW claims there are no current MCL exceedances for arsenic. The 

most recent, highest data point was 0.0045 mg/L of arsenic in Well D-33A while the MCL is 0.010 mg/L.

Regarding at risk populations, the closest private water wells in the KDOW database are between 0.79 

miles and 1.05 miles to the southwest and the southeast, respectively, of the waste boundary, all situated 

up-gradient of the waste disposal areas. Moreover, all three wells are situated within the PGDP Water 

Policy Boundary and are therefore not used for consumption. No residential wells exist on TVA property. 

Groundwater from the landfill and surface impoundment area discharges to Little Bayou Creek and the 

Ohio River before it can impact any residential well users.

Finally, KDOW rejects EIP’s (2010a) inference about the possible nexus between the contamination of 

Metropolis Lake and the Site’s CCRs by stating that (i) a fish advisory for mercury has been issued for 

every stream in the state, including the Ohio River, which also has an advisory for PCBs; (ii) data does 

not exist which allows the determination of the origin of the mercury and PCBs in the fish tissue. KDOW 

suggests that the contaminated fish are most likely coming from the Ohio River, which inundates 

Metropolis Lake during floods, restocking the lake with new fish during each flooding event.323, 324

Evaluation against Proven Damage Criteria325

 

320 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0208.

321 Kentucky Department of Environmental Protection, EPA-HQ-RCRA-2009-0640-6260.

322 KDEP comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0219.

323 KDEP comment to the 2011 NODA docket, ibid.

324 Still, EIP et al., (2013) claims that according to KDEP PDES No. KY0004219, issued July 13, 2005, the 

Shawnee Plant discharges daily nearly 20 million gallons of ‘ash fouled water’ into the Ohio River without limits on 

any toxic metals. In the absence of monitoring at the outfall and immediately downstream, KDOW’s contentions 

cannot be substantiated. 

325 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 and selenium.

 Onsite groundwater data exceeded EPA SMCLs for 

sulfate and TDS. 

 Onsite groundwater data exceeded the EPA Lifetime 

Health Advisory Level for boron. 

 No offsite groundwater data are available. 
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Resolution: On August 20, 2009, TVA’s Board of Directors decided to convert Shawnee’s waste 

management by switching from wet bottom ash handling to dry storage.326

Groundwater was assessed in the 1980s, but consistent monitoring began only in 2003.327 The early and 

subsequent impact findings have not elicited any enforcement action by KDWM, including the failure to 

require offsite groundwater monitoring. Monitoring for CCR-associated metal started only in September 

2008. As recently as 2007, KDWM permitted the expansion of the landfills as “special waste landfills” 

without a liner, over old, unlined ash ponds. There are no regulatory corrective actions, administrative 

rulings, or court decisions associated with the Site.

USWAG claims that this site does not qualify as a damage case.328

ICF (2010) Rationale: Potential Damage. <Groundwater exceedances of primary and secondary 

MCLs, as well as EPA’s Lifetime Health Advisory Level have been found onsite. While reddish leachate 

has been observed seeping into surface water onsite, there are no data to support that this is causing 

damage to human health or the environment. There are no regulatory corrective actions, 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 #12, 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 #12. ICF, 10/2010.

 

326 TVA (No date, presumably 2009)

327 According to TVA Inspector General (2011), for the first quarter of 2008, Permit #073-0041 required that the 

Dry Ash Stack be tested for seven constituents. The permit was then modified, which increased the number of 

constituents to 12. Semiannual testing was required for the first half of calendar year 2008 and then switched to 

quarterly to determine baseline data for a new well. 

328 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 Document also claim Damage to Little Bayou Creek and the Ohio River but provide no 

surface water sampling or scientific studies of these water bodies to support the claim.”

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage to 

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

damage)

 A reddish leachate has been observed seeping into 

Little Bayou Creek located onsite, which discharges 

into the Ohio River downstream. No data, however, 

to support that the reddish leachate is causing damage 

to human health or environment.

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
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TVA (2009a): TVA Disposal Facility Assessment: Phase 1 Plant Summary, Shawnee Fossil Plant (SHF) 

(June 2009). Accessed Online May 2012. 

http://www.tva.gov/power/stantec/ky/rpt_005_appndx_c_shf_171468118.pdf

TVA (2009): Submission from TVA to Richard Kinch, USEPA, Re: Request for Information under 

CERCLA Section 104(e) for Ash Management Units (March 25, 2009). Accessed Online May 2012.

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

Quarles and Segall (2010): Slow Motion Spills: CCW and Water in Kentucky, Sierra Club, Kentucky 

Waterway Alliance, and Global Environmental, LLC, 2010. Accessed Online May 2012. 

http://kentucky.sierraclub.org/resources/Environmental_Research/Coal_Combustion_Waste_and_Water_I

n_KY_042110.pdf 

Risky Business (2011): Risky Business: Coal Ash Threatens America’s Groundwater Resources at 19 

More Sites. Environmental Integrity Project Report, Dec. 13, 2011. EPA-HQ-RCRA-2011-0392-0259. 

Accessed Online May 2012.

http://www.environmentalintegrity.org/documents/121311EIPThirdDamageReport.pdf 

EIP et al., (2013): Closing the Floodgates: How the Coal Industry is Poisoning Our Water and How We 

Can Stop It, Waterkeeper Alliance, Environmental Integrity Project, Clean Water Action, Earthjustice, 

Beyond Coal, and Sierra Club, July 23, 2013. Accessed Online August 2013.

http://www.environmentalintegrity.org/news_reports/documents/2013_07_23_ClosingTheFloodgatesFinal.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

TVA (2005): NOxOUT Selective Noncatalytic Reduction Demonstration, Shawnee Fossil Plant - Unit 1, 

West Paducah, Kentucky, Final Environmental Assessment, Project Number: 2005-44, Tennessee Valley 

Authority, April 2005. Accessed Online December 2012.

http://www.tva.gov/environment/reports/shawnee/ea.pdf

EIP (2011): Petition for objection to Tennessee Valley Authority Title V Permit No. V-09-002 Rl for the 

operation of the Shawnee Fossil Plant in West Paducah, Kentucky, Environmental Integrity Project and 

the Southern Alliance for Clean Energy, submitted to the Administrator of the U.S. Environmental 

Protection Agency, February 28, 2011. Accessed Online December 2012.

http://www.epa.gov/region7/air/title5/petitiondb/petitions/shawnee_petition2011.pdf

Carey and Stickney (2005): Groundwater Resources of McCracken County, Kentucky, Daniel I. Carey 

and John F. Stickney, County Report 79, Series XII, Kentucky Geological Survey, University of 

Kentucky, 2004. Accessed Online December 2012.

http://www.uky.edu/KGS/water/library/gwatlas/McCracken/McCracken.htm

Hopkins (1966): The Fresh-Saline Water Interface in Kentucky, H.T. Hopkins, U.S. Geological Survey, 

Kentucky Geological Survey, University of Kentucky, in cooperation with United States Geological 

Survey, Department of the Interior, 1966. Accessed Online December 2012.

http://kgs.uky.edu/kgsweb/download/wrs/SALINE.PDF
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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Free, et al., (1957): Geology and Ground-Water Resources of the Paducah area, Kentucky. H. L. Free, Jr., 

W. H. Walker, and L. M. MacCary, in cooperation with the Agricultural and Industrial Development 

Board, Commonwealth of Kentucky, Geologic Survey Water Supply Paper 1417, 1957. Accessed Online 

December 2012.

http://pubs.usgs.gov/wsp/1417/report.pdf

Clausen et al., (1995): Redacted Final Report on Drive-Point Profiling of the Northwest Plume and 

Analysis of Related Data, Paducah Gaseous Diffusion Plant, J.L. Clausen, J.L. Zutman, D.A. Pickering, 

and N.D. Farrow, Prepared by Environmental Management and Enrichment Facilities, Kevil, Kentucky 

42053, Document Number: KY/ER-66, April 1995. Accessed Online December 2012.

http://www.paducaheic.com/media/44982/I-04613-0032a-ARI24.PDF

Clausen and Richards (1994): Treatability Studies Using Iron Filings to Remediate Trichloroethylene and 

Technetium, Paducah Gaseous Diffusion Plant, J. L. Clausen and W. L. Richards, Document Number: 

KY/ER-51, Environmental Restoration: Paducah ER WM, February 1994. Accessed Online December 

2012.

http://www.paducaheic.com/media/38622/I-00111-0015-GRC01.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

Focused Feasibility Study (2010): Focused Feasibility Study for the Southwest Groundwater Plume 

Volatile Organic Compound Sources (Oil Landfarm and C-720 Northeast and Southeast Sites) at the 

Paducah Gaseous Diffusion Plant, Paducah, Kentucky, DOE/LX/07-0186&D2/R2. Prepared for the U.S. 

Department of Energy Office of Environmental Management, Environmental Management Activities at 

the Paducah Gaseous Diffusion Plant, Paducah, Kentucky, June 2010 (Revised July 2010). Accessed 

Online December 2012.

http://latakentucky.com/PublicDocuments/SW%20Plume%20FFS%20D2R2/SW%20Plume%20FFS%20

D2%20R1%20CLEAN%20with%20Replacement%20Pages.pdf

Significant Differences to the ROD (2010): Explanation of Significant Differences to the Record of 

Decision for the Interim Remedial Action of the Northwest Plume at the Paducah Gaseous Diffusion 

Plant, Paducah, Kentucky, DOEILX/07 -0343&D2, Prepared by LATA Environmental Services of 

Kentucky, LLC, for the U.S. Department of Energy Office of Environmental Management, December 

2010. Accessed Online December 2012.

http://www.epa.gov/superfund/sites/rods/fulltext/e2011040003786.pdf

O’Brian & Gere (2013): Dam Safety Assessment of CCR Impoundments, TVA Shawnee Fossil Power 

Plant, Final Report. O’Brian & Gere, February 4, 2013. Accessed Online July 2014.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm#T
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PTb18. Spurlock Power Station, Eastern Kentucky Power Cooperative (EKPC), Maysville, 

Mason County, Kentucky

Type: Landfill and Surface Impoundment.

Background and Description: The Spurlock Power Station is a 1,557 nameplate generation capacity 

facility,329 located in Maysville, Kentucky. The Station has disposed of coal combustion residual (CCR) 

from the Eastern Kentucky Power Cooperative (EKPC)330 in a landfill since the 1970s.331 The landfill was 

permitted as an “inert landfill” in 1979 and a construction/operation permit was issued in 1982 and 

renewed in 1996.332 It is unknown if a liner is present at the original phases, however a 389 acre 

expansion in 1996 was lined with two feet of clay.333 A 57-acre, 1976-constructed bottom ash pond with a 

capacity of 1,750,000 cubic yards is also present at Spurlock Station.334 The site is located approximately 

one mile from the Ohio River, over Quaternary Ohio River alluvium and glacial outwash. The landfill is 

located on Upper Ordovician-age limestone and shale of the Outer Bluegrass structural dome and 

 

329 The Plant consists of the following generation units, with their nameplate/net generating capacity and their 

corresponding commissioning dates: Unit 1: 358/325 MW (1977); Unit 2: 592/525 MW (1981); Unit 3: 329/268 

MW (2005), and Unit 4: 278/278 MW (2009). Units 3 and 4 use circulating fluidized bed technology 

(http://www.ekpc.coop/pressreleases/2009%20press%20releases/2009-04-01_Spurlock4_commercial_start.pdf), 

burning high-sulfur bituminous coal from Kentucky. The gross calorific value of this high-ash (20%) coal is 10,400 

BTU/lb (http://www.alstom.com/Global/Power/Resources/Documents/Brochures/spurlock-station-4-datasheet.pdf). 

The boiler technology provides Spurlock Unit 4 with the capability to fire a wide range of coals and up to 20% cofiring of petroleum coke, biomass, and approximately five million tires per year. As part of an innovative four-year 

project to study using switchgrass, in December 2008 University of Kentucky and EKPC demonstrated switchgrass’ 

potential as an alternative fuel to generate electricity at the Spurlock Station. The switchgrass was mixed with the 

coal feedstock, replacing 1 to 2 percent of the coal normally used 

(http://www.kentuckycleanfuels.org/resources/fuelsandtechnologies/powerplant.htm).

330 The Eastern Kentucky Power Cooperative (EKPC) is a not-for-profit generation and transmission electric utility 

with headquarters in Winchester, Ky.

331 Currently in receipt of fly ash and FGD gypsum.

332 RCRA Permit # 081-00005. According to KPEC’s comment to the October 2011 NODA (EPA-HQ-RCRA2011-0392-0209), the total permitted area of the Spurlock Landfill is 389 acres, of which 177 acres are designated 

for fill. According to EIP (2010a), one phase of the Spurlock Station ash landfill (Area A) is located on a ridge and 

two phases (Areas B and C) are located in spring-fed hollows, each containing an intermittent stream. The horizontal 

expansion of Area C, permitted in 2005, occupies 54.48 acres.

333 The liner has a permeability of 1 x 10-7

cm/sec. According to EIP (2010a), citing an EKPC report, EKPC 

performed a “liner risk analysis” as part of their application for a horizontal expansion further into adjacent hollows. 

The risk analysis included a Synthetic Precipitation Leaching Procedure (SPLP) for fly ash and bottom ash. The 

result of that test showed arsenic leaching from the ash at 0.066 mg/L, or 6.6 times higher than the current EPA 

MCL. EKPC was not concerned about the SPLP result, concluding that the proposed liner meets permit standards.

334 East Kentucky Power Cooperative (2009). According to Dewberry and Davis (2011, Appendix B, Document 9), 

the impoundment is lined with a 15-18” clay liner, with a leak rate (estimated at construction) of 91 (± 20 percent) 

gallon/minute. According to EIP (2010a), the impoundment is located 200 feet from the Ohio River: for location,

see Dewberry and Davis (ibid, Appendix A, Document 1). It is regulated under KPDES Permit No. KY0022250.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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physiographic region, underlain by the Grant Lake Limestone, presumably a karst substrate.335, 336

Groundwater has been evaluated at the site employing shallow wells that are screened in fractured 

bedrock, but not offsite. The monitoring is confined to the landfill, and there is no monitoring associated 

with the bottom ash pond.

According to EKPC reports cited in EIP (2010a), shallow groundwater conditions exist in weathered, 

fractured bedrock, and the flow direction is a reflection of the surface topography. Groundwater flows in 

secondary fractures and joints in a karst limestone and shale aquifer. The soil above the bedrock is less 

than one foot deep along the sides-lopes of the hollows; therefore, there is little naturally-occurring 

pollutant attenuation beneath the liner. The groundwater flow velocity at Spurlock Station is very high –

up to 400 feet per year. A dye trace investigation performed at the landfill showed that groundwater from 

the landfill area emerges at springs in the hollows. The dominant direction of groundwater flow is 

probably to the northeast, toward the Ohio River.337

Impact and Damage Claims: EIP (2010a) indicates that levels of arsenic exceeded the primary EPA 

Maximum Contaminant Level (MCL) in onsite groundwater. Additionally, sulfate and TDS exceeded the 

secondary EPA MCL (SMCL) in onsite groundwater. EKPC considered well IW-8 (also known as MW1) the “base well” to which all other wells are compared, even though IW-8, like the other wells, is downgradient from the CCR disposal areas. Nevertheless, EKPC used the mean concentrations from IW-8 as 

the baseline for comparison. The results indicated that contaminated groundwater has migrated to hollows 

to the northeast (IW-7), east (Well A and IW-8), and southeast (IW-6).

The landfill has been leaking since at least 2005: arsenic reached concentration levels of x16 MCL, 

sulfate - x3.5 SMCL, iron - x3 SMCL, and TDS - x4 SMCL. Arsenic concentrations in well IW-7 were 

greater than the EPA MCL for every sampling event, and the concentrations ranged from 0.0193 mg/L 

(November 2008) to 0.16 mg/L (June 2009).338

According to EIP (2010a), the oldest accessible groundwater data are from May 2005, when the 

monitoring system included no up-gradient wells, three down-gradient wells, and one side-gradient 

 

335 In response to EIP’s (2010a) statement about the underlying karstic substrate, in its comment to the 2011 NODA 

docket (EPA-HQ-RCRA-2011-0392-0219), KDWM claims that this formation does not develop extensive karst 

features (“The landfill is located on Upper Ordovician limestones and shales of the Outer Bluegrass physiographic 

region. Outer Bluegrass karst with its higher occurrence of inter-bedded shale layers does not develop extensive 

karst features resulting in much slower groundwater movement than very rapid flow.” KDWM assigns the site with

a groundwater sensitivity rating of #2 to #3, on a scale of 5). This claim is affirmed by Kentucky Geological 

Survey’s map designation of the area south of the Spurlock Station as “area of less potential for karst” 

(http://www.uky.edu/KGS/water/general/karst/where_karst.htm); see Kentucky Geological Survey (2006) and

Currens (2002).

336 For the geology and structure of the Outer Bluegrass region/Mason County, see Hopkins (1966), Weir et al., 

(1984), McDowell (1986), and Carey and Stickney (2004)

http://kgs.uky.edu/kgsweb/download/gwatlas/gwcounty/mason/MASONGEO.pdf

337 According to Carey and Stickney (ibid) (http://www.uky.edu/KGS/water/library/gwatlas/Mason/Overview.htm), 

the Ohio River alluvium is the best source of groundwater in Mason County. Many properly constructed drilled 

wells will produce several hundred gallons per minute from the alluvium, with most wells able to produce enough 

for a domestic supply at depths of less than 100 feet. Water is hard or very hard, but otherwise of good quality.

338 EIP (2010a) claims that the exceedances in groundwater are located 750 feet beyond the coal ash landfill 

boundary, which is later described as 750 feet beyond the permitted area at IW-7. However, later in the EIP (2010a), 

IW-7 is described as being an onsite well. It appears that although IW-7 might be beyond permitted boundaries, it is 

still within the property limits and is therefore onsite.
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well.339 Whereas statistical analyses of groundwater data have been required since at least 2005, such 

analysis was only performed once (2006) in four years. In a January 2008 letter to the Division, EKPC 

concluded that “no meaningful statistics can be performed” because the data set was so small, even 

though the 2006 analysis indicated multiple statistically significant increases (SSIs) in parameter 

concentrations. The Kentucky Division of Waste Management (KDWM) does not require that a 

potentiometric surface diagram be submitted with groundwater reports and as a result, it is unable to 

determine the location of any well or the direction and rate of groundwater flow at the site. Given that 

there is no true reported up-gradient well, the results of the statistical analyses likely indicate more 

significant contamination because there is no ambient, unaffected background well to compare downgradient and side-gradient well results. Instead, down-gradient wells are compared to wells that have 

already been affected by CCR.

EKPC submits that340 EIP’s (2010a) annotation of the sites of wells MW-1, MW-2, and MW-3 is 

incorrect; and that MW-l (also known as IW-8) is the reference well, that is located side-gradient to the 

fill Areas in a location that is unaffected by landfill operations, as required by Kentucky regulations. 

EKPC claims also that the results of groundwater sampling do not indicate the presence of contamination 

in MW-1, MW-2 or MW-A; and that Kentucky’s permitted groundwater standard for arsenic is 0.050 

ppm, not 0.010 ppm. Finally, in response to EIP’s (2010a) map (p. 73), which shows a drinking water 

well within the plant boundary, EKPC states that no drinking water well exists on the site, and that the 

groundwater at the site is not used as a drinking water source. Contrary to the claims made in In 2010(a), 

all of the monitoring wells are within the permit boundary, there is no demonstrated impact to 

groundwater beyond the permit boundary, and there are no drinking water wells within one mile of the 

permit boundary as required by the permit conditions.341

KDWM does not deny the secondary MCLs exceedance claims. In addition, KDWM states the 

following:342 (i) EKPC replaced the monitoring wells now inside the waste boundary with new wells 

MW-2A and MW-3A down-gradient and outside waste area C, which is down-gradient of Areas A and B. 

The new monitoring wells are still on the power plant’s property, but beyond the new solid waste 

boundary. Arsenic has not been detected in the replacement wells MW-2A and MW-3A during the two 

initial characterization samples required by the 401 KAR 45:160, Section 7. Therefore, there is no 

violation of federal or state open dumping requirements. (ii) EKPC owns the land between the landfill and 

the Ohio River, the natural destination for the groundwater under the landfill. Therefore, there is no 

damage shown to off-site groundwater. With the non-detect readings in the new monitoring wells, there is 

 

339 In KPEC’s comment to the October 2011 NODA (EPA-HQ-RCRA-2011-0392-0209), KPEC states that the 

Spurlock Landfill and its groundwater monitoring system have been permitted by the Kentucky Division of Waste 

Management in accordance with the requirements of 401 KAR Chapter 45, and that EKPC has followed all design 

requirements in effect at the time of development of each phase of the landfill.

340 Comment to the proposed CCR rule docket: EPA-HQ-RCRA- 2009-0640-6991, and KPEC’s comment to the

October 2011 NODA: EPA-HQ-RCRA-2011-0392-0209.

341 KPEC also states: “The picture showing the location of the drinking water wells on page 72 shows all of the 

wells to be upgradient of the shallow water flow. The one well downgradient appears to be on Spurlock property and 

is most likely the withdrawal point for the power station...Moreover, the direction of groundwater flow beneath the 

Spurlock Landfill is away from the drinking water wells shown on the map.” (Reference to the EIP 2010a aerial map 

on page 72).

342 Comment to the 2011 NODA docket: EPA-HQ-RCRA- 2011-0392-0219.
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little threat to the 25 private wells and three public wells within a two- and five-mile radius, respectively, 

of the site.343, 344

Evaluation against Proven Damage Criteria345

Resolution: In September 2010, EKPC was directed by the KDWM to conduct an assessment to 

determine the cause of the detection of arsenic in MW-3 at a concentration exceeding the permit limit. 

However, because MW-3 was abandoned as part of the landfill’s expansion, EKPC was directed instead 

(March 30, 2011) to provide a Remedial Action Plan (RAP). The RAP demonstrated that impacts to 

groundwater are confined to within the permit’s boundary. Groundwater monitoring of MW-2A and MW3A has not indicated contamination. The assessment concluded that the migration of arsenic is impeded 

by natural attenuation.346 However, out of an abundance of caution, the RAP proposed as a remedy the 

collection of leachate from landfill Areas A and B in the leachate drainage layer of Area C, which will 

prevent impacts to groundwater from all three fill areas.347

 

343 In an earlier comment (EPA-HQ-RCRA-2009-0640-6260), KDEP states that there only appears to be one 

residential well down-gradient from the landfill within the two-mile radius. This well needs to be investigated for its 

actual use, as it appears it may be on plant property.

344 A detailed (1:24,000), Kentucky Geologic Survey 2012 Groundwater Data Repository, Water Well and Spring 

Location Map of the alluvial and glacial till terraces in the Spurlock Station’s area between Route 8 and the Ohio 

River depicts four groundwater monitoring wells; two wells (one ‘domestic’ and one ‘other) that straddle the 

northeastern margins of the Station’s coal pile; two wells (one ‘industrial’ and one ‘other’) just south of the Bottom 

Ash Pond; and one well (‘other’), next to the northeastern corner the Bottom Ash Pond:

http://kgs.uky.edu/kgsmap/KGSWater/viewer.asp?startLeft=5423774.79&startBottom=4057600.36&startRight=552

8259.37&startTop=4175344.13&QueryZoom=Yes

345 ICF (2010a).

346 More recently, KDEP stated (KDEP Division of Waste Management comment to the October 2011 NODA: 

EPA-HQ-RCRA-2011-0392-0219) that the Commonwealth placed the facility in the groundwater assessment phase, 

the owners performed corrective action and recent monitoring confirmed a return to compliance.

347 KDWM and KPEC comments to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0219, and EPA-HQRCRA-2011-0392-0209, 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.

 Onsite groundwater data 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 

explicit finding of specific damage to human 

health or the environment

 None
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USWAG claims this site does not meet the criteria for a damage case.348

ICF (2010) Rationale: Potential Damage. <Although the EIP/EJ/SC August 2010 Report indicates that 

exceedances of primary and secondary MCLs had occurred offsite, it is apparent that these exceedances 

actually occur at well IW-7, which is located onsite.349 Therefore, there has not been any assessment of 

groundwater or surface water offsite and there are no other impact or damage claims. There are no 

regulatory corrective actions, administrative rulings, or court decisions associated with the 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 #13, 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 #13. ICF, 10/2010.

Quarles and Segall (2010): Slow Motion Spills: CCW and Water in Kentucky/Sierra Club, KY Waterway 

Alliance, and Global Environmental, LLC, 2010. Accessed Online May 2012.

http://kentucky.sierraclub.org/resources/Environmental_Research/Coal_Combustion_Waste_and_Water_I

n_KY_042110.pdf

East Kentucky Power Cooperative (2009): Response to Request for Information under Section 104 (e) of 

Comprehensive Environmental, Response, Compensation and Liability Act, 42 U.S.C. 9604(e), March 

24, 2009. Accessed Online May 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/east-ky.pdf

Currens (2002): Kentucky is Karst Country! What You Should Know About Sinkholes and Springs, 

James C. Currens, Kentucky Geological Survey, University of Kentucky, Lexington, Information Circular 

4, Series XII, 2002. Accessed Online December 2012. 

http://kgs.uky.edu/kgsweb/olops/pub/kgs/ic04_12.pdf

Hopkins (1966): The Fresh-Saline Water Interface in Kentucky, H.T. Hopkins, U.S. Geological Survey, 

Kentucky Geological Survey, University of Kentucky, in cooperation with United States Geological 

Survey, Department of the Interior, 1966. Accessed Online December 2012.

http://kgs.uky.edu/kgsweb/download/wrs/SALINE.PDF

Weir et al., (1984): Lithostratigraphy of Upper Ordovician Strata Exposed in Kentucky, G.W. Weir, W.L. 

Peterson, and W.C. Swadely, Contributions to the Geology of Kentucky, U.S. Geological Survey 

Professional Paper 1151-E, in Cooperation with the Commonwealth of Kentucky, University of 

Kentucky, Kentucky Geological Survey, 1984. Accessed Online December 2012.

 

348 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. The 

alleged off‐site impacted well is not off‐site, but is located within the property boundary of the site.”

349 However, as stated in greater detail in EIP (2010a) and in Quarles and Segall (2010) and summarized above, 

SMCL exceedances were also recorded in additional onsite wells, i.e., IW-6, IW-8, and Well A.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

100

http://books.google.com/books?id=BiUsAQAAIAAJ&pg=SL5-PA115&lpg=SL5-

PA115&dq=Palmquist,+W.N.,+Jr.,+and+Hall,+F.R.,+1960,+Availability+of+ground+water+in+Bracken,

+Harrison,+Mason,+Nicholas,+and+Robertson+Counties,+Kentucky:+U.S.+Geological+Survey+Hydrol

ogic+Atlas+HA16,+scale+1:125,000.&source=bl&ots=T2ogxLS_Ca&sig=AdzeG95XclZOIkIwJjc1ArCOukw&hl=en&s

a=X&ei=djvVUOCQE5SF0QGG2oH4Dg&ved=0CEMQ6AEwBA

McDowell (1986): The Geology of Kentucky – A Text to Accompany the Geological Map of Kentucky, 

Edited by Robert C. McDowell, Contributions to the Geology of Kentucky, U.S. Geological Survey 

Professional Paper 1151-H, in Cooperation with the Kentucky Geological Survey, 1986. Accessed Online 

December 2012.

http://books.google.com/books?id=BiUsAQAAIAAJ&pg=SL5-PA115&lpg=SL5-

PA115&dq=Palmquist,+W.N.,+Jr.,+and+Hall,+F.R.,+1960,+Availability+of+ground+water+in+Bracken,

+Harrison,+Mason,+Nicholas,+and+Robertson+Counties,+Kentucky:+U.S.+Geological+Survey+Hydrol

ogic+Atlas+HA16,+scale+1:125,000.&source=bl&ots=T2ogxLS_Ca&sig=AdzeG95XclZOIkIwJjc1ArCOukw&hl=en&s

a=X&ei=djvVUOCQE5SF0QGG2oH4Dg&ved=0CEMQ6AEwBA#v=onepage&q=Palmquist%2C%20

W.N.%2C%20Jr.%2C%20and%20Hall%2C%20F.R.%2C%201960%2C%20Availability%20of%20grou

nd%20water%20in%20Bracken%2C%20Harrison%2C%20Mason%2C%20Nicholas%2C%20and%20Ro

bertson%20Counties%2C%20Kentucky%3A%20U.S.%20Geological%20Survey%20Hydrologic%20Atl

as%20HA-16%2C%20scale%201%3A125%2C000.&f=true

Carey and Stickney (2004): Groundwater Resources of Mason County, Kentucky, Daniel I. Carey and 

John F. Stickney, County Report 78, Series XII, Kentucky Geological Survey, University of Kentucky, 

2004. Accessed Online December 2012.

http://www.uky.edu/KGS/water/library/webintro.htm

Dewberry and Davis (2011): Coal Combustion Residue Impoundment Round 9 - Dam Assessment Report

H.L. Spurlock Power Station, Spurlock Ash Pond, East Kentucky Power Cooperative, Maysville, 

Kentucky, Dewberry and Davis, December 2011. Accessed Online January 2014.

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

PTb19. Big Cajun 2 Power Plant, NRG Energy - Louisiana Generating, LLC, New Roads, 

Pointe Coupee Parish, Louisiana

Type: Surface Impoundments, Surge- and Treatment Ponds.

Background and Description: The Big Cajun 2 Power Plant,350 located in New Roads, Louisiana 

(approximately 35 miles northwest of Baton Rouge), has disposed of coal combustion residuals (CCRs) 

 

350 According to NRM’s website: http://www.nrgenergy.com/about/assets.html, the Plant’s coal-fueled generating 

capacity is 1,742 MW. According to Sourcewatch, the Plant’s nameplate capacity is 1,871 MW, comprising the 

following units (with their commissioning dates): 626 MW (1981), 626 MW (1982), and 619 MW (1983) 

(http://www.sourcewatch.org/index.php?title=Big_Cajun_II_Power_Plant). A recent NRM pilot project at the Big 

Cajun II electrical generating station to evaluate local conditions for locally growing switchgrass and high-biomass 

sorghum as renewable biomass fuels, to determine their capacity for replacing a portion (10 percent) of the coal at 

the plant to reduce its carbon intensity failed when the crops yielded only a fraction of the expected biomass. (Dallas 
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from NRG Energy d/b/a Louisiana Generating in ash ponds since 1980. There are five ponds that extend 

over one mile on the disposal site: a 175 acre fly ash pond,351 a 66 acre bottom ash pond, two water 

treatment ponds (Primary and Secondary, 25.4 acres and 7.1 acres, respectively), and a rainfall surge 

pond.352 The site, in general, is approximately 1,500 feet from the west bank and within a recent meander 

lobe of the Mississippi River, with the closest pond being approximately 2,750 feet from the river. 

Groundwater has been monitored onsite since 1989; however, no offsite assessment or monitoring has 

been performed. The groundwater table is, on average, within 3-feet of the ground surface.

According to Shaw Environmental and Infrastructure Inc. (2006), the two ash-basins and two LPDES 

Treatment Ponds have ‘liners of naturally occurring clay from at least 3 to over 10 feet thick’. Over 97 

percent of the rainfall surge pond is underlain by a 2-foot thick, re-compacted clay and silt clay layer, 

‘which met the required coefficient of permeability’. 353

According to Shaw Environmental and Infrastructure Inc. (ibid), the Facility is subject to several types of 

flooding/drainage issues, including (i) a widespread flooding from the Mississippi River during the spring 

and summer; (ii) backwater flooding caused by excessive rainfall draining into low-lying areas and 

backing up into the drainage ways; and (iii) flash floods in small streams caused by rainfall of high 

intensity and short duration. “The design of the solid waste facilities at the Plant and the Mississippi River 

levee protection system insure that uncontaminated surface runoff will not drain through the operating 

areas, even in an event of excessive rainfall or any of the three types of floods.”

According to Shaw Environmental and Infrastructure Inc. (ibid), the subsurface sediments beneath the site 

comprise a complex series of southerly dipping point bar deposits of clay, silt, sand, and gravel. These 

sediments deep at a rate of about 20 feet per mile (about 0.70). The freshwater-bearing sediments beneath 

the Pointe Coupee Parish are classified ito four aquifer zones: Alluvial aquifer, Zone 1, Zone 2, and Zone 

3.

 

News, Sept. 30, 2009: http://energyandenvironmentblog.dallasnews.com/archives/2009/09/nrg-to-try-replacing-coalwith.html and http://theadvocate.com/home/279165-79/its-not-easy-going-green.html.

351 According to Shaw Environmental and Infrastructure Inc. (2006), the total acreage of the fly ash ponds is cited as 

295 acres (in Dewberry & Davis, LLC, 2011, Appendix A, Document 4).

352 According to the Response to EPA Request for Information (2009), the corresponding waste capacities of the two 

ash ponds and two water treatment ponds are (in the sequence cited above): 1,750, 1,188, 457.2, and 127.8 acre-feet.

As of 2009, the fly ash pond was 65 percent full and the bottom ash pond was 54 percent full. The surge pond was 

not evaluated by Dewberry & Davis, LLC (ibid), because it is below grade and has no dam or embankments. Two 

of the five ponds are clay-lined, while it is not clear whether the two remaining ponds are also lined. According to 

EIP (2010a), the permit application for the bottom ash and fly ash ponds was submitted to LDEQ in 1982, and the

permit was issued on June 20, 1986. According to Dewberry & Davis, LLC (ibid), the Louisiana Department of 

Environmental Quality (DEQ) granted the most recent LPDES permit to Big Cajun II Generating Station for 

wastewater discharge (permit No. LA0054135) in March, 2010, and also has permitted the solid waste management 

units as Type I Industrial Surface Impoundment (Permit No. P-0108.) According to Shaw Environmental and 

Infrastructure Inc. (2006), the Plant sells its fly ash for beneficial reuse as cement additive.

353 According to Shaw Environmental and Infrastructure Inc. (ibid), this finding is based on some 230, 10-foot 

borings. Approximately 7 percent of the test boring indicated a clay thickness ranging from 2 to 3 feet: a 1-foot layer 

of re-compacted clay was added to these areas to insure that the liner had the required minimum of 3 feet of recompacted clay.
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The up to 200-feet thick Alluvial Aquifer consists of coarse sands and gravels, characterized by a high 

degree of sinuosity. It is covered by 20- to 80-feet of surficial silt, clay and fine sand.354 Its TDS content 

ranges from 200 to 600 ppm.355 The Zone 1 Aquifer occurs about 400 feet beneath the site area and is 

about 100 feet thick. The Zone 2 Aquifer occurs about 650 feet beneath the site area and consists of 

several sand units that range in thickness between 50 to more than 100 feet. Its TDS concentration ranges 

from about 200 to 450 ppm. The Zone 2 Aquifer occurs atabout 1,350 feet BGS and consists of several 

sand units that average about 50 feet in thickness. Its TDS ranges from about 225 to 1,250 ppm.

According to Shaw Environmental and Infrastructure Inc. (ibid), of the four freshwater aquifer zones, 

only the Alluvial Aquifer has the potential to receive any leachates from the waste disposal area. The 

Alluvial aquifer beneath the site is separated from the Zone 1 Aquifer by about 100 feet of very low 

permeability clay and silt, which provide an effective barrier to migration of groundwater between these 

aquifers.

Groundwater levels at the Big Cajun 2 Power Plant CCR disposal areas range from 8 to 14 feet below the 

top of the well casing. Five groundwater monitoring wells were installed in 1985. Potentiometric surface 

diagrams from November 1992 illustrated a flow direction towards the Mississippi River for all wells, 

with MW-85C and MW-85D being the most hydraulically down-gradient wells. These wells, located on 

the eastern-most edge of all ponds, are located almost one mile west of the Mississippi River. Beginning 

in approximately 1998, Cajun Electric began reporting that at times the groundwater flowed west and 

away from the river. This westerly trend, for wells that are located almost a mile or more away from the 

river, continues. Shaw Environmental concluded in 2007 on behalf of Cajun Electric that the flow away 

from the river was due to higher river stages. This conclusion was not supported by their own data which 

indicate the surface water elevations measured at the river were 13 feet (March 2007) to 15 feet 

(September 2007) lower in elevation than the potentiometric surface elevations reported one mile west at 

the treatment pond area wells. 

Historically, the highest groundwater elevations have been found at MW-85C and MW-85D, which are 

down-gradient of all ponds and are located nearest the Primary Treatment Pond, the Surge Pond, and the 

Bottom Ash pond. Big Cajun recently recognized that “divergent flow exists to the east and west 

originating from the center of the ash impoundment area”.356 The higher groundwater elevations in pond 

area wells suggest groundwater mounding beneath the ponds due to leakage from one or more of those 

ponds, causing localized reversal of groundwater flow to the west away from the river. 

Impact and Damage Claims: EIP (2010a) indicates that levels of selenium exceeded the primary EPA 

Maximum Contaminant Level (MCL) in onsite groundwater. Additionally, total dissolved solids (TDS) 

exceeded the secondary MCL (SMCL) in onsite groundwater. EIP (2010a) claims that there is a 

statistically significant increase of calcium concentrations in the groundwater, which is an indicator of 

CCR leachate.

EIP (2010a) also reports that the Louisiana Department of Environmental Protection (LDEQ) issued a 

Notice of Deficiency (NOD) to NRG during permit renewal. LDEQ found that the groundwater 

 

354 According to Shaw Environmental and Infrastructure Inc. (ibid), the surface soils at the plant site are heavy clays 

with high Cation Exchange Capacity and with permeability ranging from 0.69 x 10-7cm/sec to virtually 

impermeable. 

355 Shaw Environmental and Infrastructure Inc. (ibid) claims that the quality of the Alluvial Aquifer is marginal due 

to its ‘relatively high TDS content and high iron and manganese content. Because of this, the aquifer is not used 

except for a few small-diameter, low yield stock wells.”

356 Shaw Environmental Inc. (2010).
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monitoring system of five wells was inadequate for monitoring the ash ponds and required NRG to install 

ten additional down-gradient wells.357 Selenium levels in the groundwater from 1994 to 1999 exceeded 

MCL in all five monitoring wells, at levels up to 1.32 mg/L (MCL is 0.05 mg/L). Concentrations of other 

metals have not been measured in the monitoring wells. Since at least 1989, TDS in the groundwater have 

been greater than the SMCL with maximum levels of 1,800 mg/L (SMCL is 500 mg/L). According to 

NRG consultant’s 2007 report,358 by 2001, TDS levels in down-gradient wells, and the number of wells

with TDS levels greater than the SMCL has increased; this trend continues into more recent monitoring 

periods.359 

LDEQ and NRG state360 that the 1999 selenium exceedance of 1.32 mg/L in MW-85C was not 

corroborated in subsequent samplings, and that all subsequent selenium levels at that well were either 

non-detects or below 0.015 ppm.361 Likewise, wells 85B and 85E have been non-detect for selenium since 

2001. Beacuse no SSI of selenium has been confirmed since 1999, the facility is not currently under 

Assessment Monitoring, pending evaluation of data from the new groundwater monitoring wells. 

Recently, Cajun 2’s consultant stated362 that analytical results for groundwater samples collected from 

monitoring wells MW-85A through MW-85E on January 15, 2010, indicated detectable concentrations of 

barium in four of the five monitoring wells. In addition, arsenic was detected in one well (MW-85E) and 

re-sampling is recommended in order to confirm the presence of arsenic.

According to EIP (2010a), beginning in 2006, LDEQ approved requests to fill hollow barge mooring 

cells in the Mississippi River with bottom ash and fly ash originating in the Big Cajun 2 Plant (NRG, 

2008). Over 11,500 cubic yards of fly ash and bottom ash from Big Cajun 2 Power Plant were placed 

in barge mooring cells in the Mississippi River as a “beneficial use” project. LDEQ could not 

confirm if any water or sediment is monitored in the Mississippi River near the mooring cells to 

ensure that heavy metals or other harmful constituents are not leaching from the coal ash.

 

357 According to LDEQ’s EPA-HQ-RCRA-2011-0392-0256, however, the groundwater monitoring system installed 

actually exceeded the regulatory requirements current at the time of the original permit. More monitoring wells were 

required for the new groundwater system only because of new regulations in existence at the time of the permit 

renewal.

358 Shaw Environmental (2007).

359 For example, between March 2000 and March 2007, MW-85C had TDS exceedances in 12 of 15 monitoring 

events; MW-85D had exceedances in 10 of 15 events; and MW-85E had exceedances in all 15 events, with the 

highest levels up to 1,800 mg/L. As of 2009, Shaw Environmental found SSIs of calcium and TDS in wells MW85C, MW-85D, and MW-85E.

360 LDEQ and NRG comments to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0256 and EPA-HQRCRA-2011-0392-0220, respectively.

361 According to the LDEQ comment to the October 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0256), the 

selenium detection in MW-85C of 1.32 ppm was at the time of its detection in 1999, a statistically significant 

increase (SSI). But a SSI does not automatically trigger an assessment. The prescribed way to evaluate an SSI, as 

per Louisiana Solid Waste regulations (LAC 33:VII.805.C.6), is first to confirm a SSI by verification resampling. 

Subsequent data from the 1999 detection are all below detection limits except a 0.015 ppm detection in September 

2000 in well 85C, thus disconfirming the SSI. In fact, with the exception of minor detections of selenium in 

monitoring wells 85B and 85E in March of 2003, all wells have been non-detect for selenium since 2001. 

Consequently, the facility in not currently under assessment monitoring but rather under detection monitoring, 

pending evaluation of data from the new groundwater monitoring system.

362 Shaw Environmental Inc. (2010).
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Evaluation against Proven Damage Criteria363

Other Considerations: According to EIP (2010a), there are reportedly 11 public drinking water sources 

within five miles of the site, each of which serves at least 60 citizens. There are also reportedly three 

private drinking water wells within two miles of the site.

Resolution: LDEQ issued a Notice of Deficiency (NOD) during permit renewal regarding inadequacy of 

monitoring well system and required that 10 additional downgradient wells be installed. However, none 

of the new wells are off-site.364 NRG claims365 that the NOD from LDEQ was administrative, issued only 

to complete the permitting process. Specifically, the reason why additional monitoring wells were 

required for this permit was because of the new regulation in effect at the time the permit was issued. 

Current regulations, LAC 33:VII.805.A.2.d, require that a maximum spacing between down-gradient 

wells should not exceed 800 feet.

USWAG claims that this Site does not meet the criteria for a damage case.366

 

363 ICF (2010a).

364 Furthermore, LDEQ is requiring that a true background well be installed, although NRG Big Cajun concluded 

that “it is not possible at this time to conclusively specify an up-gradient . . . well” (Shaw Environmental, 2010, in

EIP (2010a). Of the ten new wells, seven wells are required for the extreme western edge of the fly ash pond in an 

area that was once believed to be “up-gradient” and three are required along the eastern boundary of the primary 

treatment and surge ponds. The additional down-gradient wells along the western boundary confirm that well MW85A, which is located at the western property line and at times has exceeded groundwater standards (most notably 

for selenium), is not an “up-gradient” but rather down-gradient, and has been affected by CCR. According to EIP 

(2010a), the location of well MW-85A at the western property line suggests that contaminated groundwater above 

regulatory standards has migrated off-site. Despite this evidence, LDEQ has never required any off-site groundwater 

sampling.

365 NRG’s comment to the October 2011 NODA’s docket: EPA-HQ-RCRA-2011-0392-0220.

366 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.”

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 

MCL for selenium.

 Onsite groundwater data exceeded the 

secondary MCL for 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

 LDEQ issued a NOD to NRG with regards to 

the inadequacy of the monitoring well system 

and required that ten additional downgradient 

wells be installed.

 No other regulatory corrective actions, admin. 

rulings, or court decisions.
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ICF (2010) 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 

and there are no other impact or damage claims. LDEQ issued a NOD to install additional downgradient 

monitoring wells onsite; however, there are no other regulatory corrective actions, administrative rulings, 

or court decisions associated with the 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 #14, 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 #14. ICF, 10/2010.

Response to EPA Request for Information (2009): Request for Information under Section 104(e) of the 

Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9604(e), Big 

Cajun 2 Power Station, Louisiana Generating LLC, March 30, 2009. Accessed Online November 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/nrg-cajun.pdf

Dewberry & Davis, LLC (2011): Coal Combustion Waste Impoundment Round 5 - Dam Assessment 

Report, Big Cajun II Generating Station Fly Ash Pond, Bottom Ash Pond, Primary and Secondary Water 

Treatment Ponds Final, Louisiana Generating, LLC, New Roads, LA, July 2010, Revised November 

2010, Final, Rev 2, Revised March 2011. Accessed Online November 2012.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/louis_gen_big_cajun_ii_final.pdf

Shaw Environmental and Infrastructure Inc. (2006): Louisiana Generating, LLC Big Cajun II Power Plant 

Type I Solid Waste Facility Permit Renewal and Modification Application GD-077-0583/P-0108, April 

28, 2006, In Appendix A, Document 4, Dewberry & Davis, LLC (2011). Accessed Online November 

2012.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/louis_gen_big_cajun_ii_final.pdf

Shaw Environmental Inc. (2010): Response to Notice of Deficiency (NOD) Type I Solid Waste Facility 

Permit Renewal and Modification Application, Louisiana Generating, L.L.C, Big Cajun II Power Plant, 

New Roads, Louisiana, Agency Interest Number 38867/GD-077-0583, Per 19960002, Permit No. P-0108, 

May 2010, Revised March 2011, Shaw Environmental Inc. In Appendix A, Document 8, Dewberry & 

Davis, LLC (2011). Accessed Online November 2012.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/louis_gen_big_cajun_ii_final.pdf

PTb20. Dolet Hills Power Station, CLECO Power LLC, Mansfield, De Soto Parish, 

Louisiana
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Type: Landfill and Surface Impoundments.

Background and Description: The Dolet Hills Power Station, a mine-mouth plant,367 is located near 

the town of Naborton, approximately 6 miles east of Mansfield, northwestern Louisiana. The Dolet Hills 

Plant has disposed of coal combustion residual (CCR) from CLECO Power LLC since its inception, 1986. 

There are ten disposal units onsite including one landfill, three bottom ash ponds, three surge ponds,368 a 

metal cleaning waste pond,369 a plant discharge collection pond, and a limestone runoff pond.370 Ash 

Ponds 1 and 2, as well as the Secondary Ash Pond (Ash Ponds) contain bottom ash and sluice water.371

Surge Ponds 1 and 2, as well as the Auxiliary Surge Pond contain flue gas desulfurization (FGD) sludge, 

ash, and sluice water. The Fly Ash/FGD Landfill Pond receives stormwater runoff from the Landfill; 

therefore, this pond would contain traces of bottom ash, fly ash, and FGD sludge.372

 

367 According to CLECO’s website: http://www.cleco.com/site209.php, Troy (1993), and 

http://www.reuters.com/article/2009/04/30/idUS181733+30-Apr-2009+PRN20090430, the Plant generates 650 MW 

of electricity using lignite, which is mined since 1986 in the fully dedicated Dolet Hills mine (in 2008, 3.3 million 

tons annually) in Desoto Parish near Mansfield and since 1989, in the Oxbow mine (in 2008, 550,000 tons 

annually), in Red River Parish. According to Louisiana’s DENR website, a seven-mile conveyor belt sends the Dolet 

Hills mine lignite directly from the mine to the plant, whereas crushed lignite is hauled 19 miles from the Oxbow 

mine to the plant in specially designed tractor trailers with a 30 ton capacity: 

http://dnr.louisiana.gov/index.cfm?md=pagebuilder&tmp=home&pid=305#types

368 It is unknown whether these three ponds are lined. The Auxiliary Surge Pond acts as an emergency storage basin 

for scrubber waste slurry from the flue gas desulfurization (FGD) process. The Auxiliary Surge Pond has a surface 

area of 0.35 acres and a storage capacity of 1.54 acre-feet (2,485 cubic yards). 

Surge Pond 1 is a collection basin for various plant waste streams. It has a surface area of 2.25 acres and a total 

storage volume of 24 acre-feet (38,720 cubic yards). 

Surge Pond 2 provides additional storage volume during peak flow periods. This pond’s surface area is 4.8 acres and 

it has a total storage volume of 48.4 acre-feet (78,085 cubic yards).

369 The metal cleaning waste pond receives two liquid waste streams: fly-ash laden wash water from the air heater 

system, and boiler and turbine wash water. The primary solid collected in the pond is fly ash.

370 According to AMEC (2011), the Plant’s bottom ash is sluiced into either Ash Pond 1 or Ash Pond 2. Decant 

water from Ash Ponds 1 and 2 is gravity discharged into the Secondary Ash Pond. Flow from the Secondary Ash 

Pond is discharged by pumping for either reuse by the facility or to the permitted LPDES Outfall 002. Discharge 

directed to the LPDES outfall is released to an earthen channel that flows to Mundy Bayou.

Bottom ash dredged from the ash ponds is hauled to the on-site Fly Ash/Scrubber Sludge Landfill. A portion of the 

fly ash is gathered and sold as product in its dry state, while the remainder is mixed with sludge from the flue gas 

desulfurization (FGD) process to produce a final product that is suitable for transportation to the Fly Ash/Scrubber 

Sludge Landfill. FGD is practiced at Dolet Hills and sludge produced from this process is sent to the Auxiliary 

Surge Pond, which discharges into Surge Pond 1. Surge Pond 2 is used when additional volume is required for FGD 

process waste products.

371 All three ponds have a liner ‘equivalent to 3’ clay, with permeability of 1x10-7

cm/sec.’ Ash Pond 1 is located 

directly adjacent to and south of the Secondary Ash Pond. The pond receives sluiced bottom ash and has a surface 

area of 30 acres and a storage capacity of 400 acre-feet (645,333 cubic yards).

Ash Pond 2, which also receives sluiced bottom ash, is located directly adjacent to and north of the Secondary Ash 

Pond. The surface area of Ash Pond 2 is 31 acres, and its storage capacity is 425 acre-feet (685,667 cubic yards). 

The Secondary Ash Pond, which is located between Ash Pond 1 and Ash Pond 2 and collects decant from both 

ponds, has surface area and total storage capacity of 6.5 acres and 138 acre-feet (222,640 cubic yards), respectively.

372 The Fly Ash/FGD Landfill Pond embankment has a cross valley configuration. Design documents provided for 

the Fly Ash/FGD Landfill Pond indicate that the pond would be constructed to include a “re-compacted clay liner as 

required 3 feet thick” beneath the entire water surface of the pond. The minimum barrier and permeability 

requirements are as specified by the Louisiana Department of Environmental Quality (LDEQ) Solid Waste Rules 

and Regulations. This pond was placed into service in 1986 and was enlarged in 1998 through the installation of a 

reinforced concrete wall along the embankment to hold a volume equal to 1,225,000 cubic yards.
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Discharges from the facility are directed to Mundy Bayou which flows into the Red River. The distances 

between the closest point of the ash ponds and Mundy Bayou and the Red River are approximately 0.4 

miles and 9.3 miles, respectively. Groundwater has been monitored onsite at 36 wells and piezometers at 

six of the disposal units. No offsite assessment or monitoring has been required.373

Soil borings drilled in the area of Ash Basins and Secondary Pond indicated silty clay close to the surface. 

This unit, about 2 feet thick, had lenses of silty sand. It is underlain by the up to 800 feet of thick silty 

clays of the Porters Creek Formation. The marine, Paleocene age Porters Creek Formation contains a 

high-fraction of highly adsorbent smectite clays.374 Laboratory tests conducted on the soil samples 

indicated their permeability is in the range of 8.3x10-7to 1.08x10-7cm/sec.375

Four distinct permeable zones of groundwater exist at the site in predominantly sandy soils. Groundwater 

Zone 4 (the deepest) is present beneath all surface impoundments and ponds in the plant area and beneath 

the landfill. Groundwater Zone 3 is found predominantly beneath the metal cleaning pond. The uppermost zones (Groundwater Zones 1 and 2) are only located south at the FGD landfill, and Zone 1 

discharges to surface water.376

Impact and Damage Claims: EIP (2010a) indicates that levels of arsenic, lead, and selenium exceeded 

the primary EPA Maximum Contaminant Level (MCL) in onsite groundwater.377 Additionally, sulfate 

and total dissolved solids (TDS) exceeded the secondary EPA MCLs (SMCLs) in onsite groundwater. 

Sulfate also exceeded the EPA Health Advisory Level.378 The report claims that low pH, and statistically 

significant changes in specific conductance, alkalinity, and calcium, all are indicative of CCR leachate.

 

373 According to EIP (2010a), the current groundwater monitoring program includes these parameters: pH, specific 

conductance, total dissolved solids (TDS), alkalinity, sulfates, chlorides, iron, copper, calcium, phosphorus, and 

zinc; however, the program does not routinely monitor for other metals present in coal ash.

374 Thomas and Murray (1989).

375 Soil and rock sequence descriptions are from: Seepage Impact Assessment Plan for Surface Impoundments, a 

report prepared by Environmental Management, Inc., October 1988, cited in AMEC (2011).

376 EIP (2010a), citing a CLECO report.

377 Cleco Corporation, in its comment to the October 2011 NODA’s docket: EPA-HQ-RCRA-2011-0392-0278, 

challenges EIP’s (2010a) assertions: (i) in a December 2009 groundwater sampling, monitoring well OW-33 yielded

an arsenic exceedance (0.0156 mg/L). However the same well in the August 2009 sampling event and both 2010 

semiannual sampling events yielded non-detects for arsenic, implying that the December 2009 sample result was an 

outlier. (ii) Monitoring well OW-36 was newly installed when first sampled during the August 2009 sampling event. 

In both the August 2009 and December 2009 sampling events, this well yielded lead exceedances (0.023 mg/L and 

0.019 mg/L, respectively). However both of the 2010 semiannual sampling events in this well yielded non-detects 

for lead. This suggests that the initial sample results were caused by turbidity that is typically associated with a new 

well. In addition, none of the sample data discussed in (i) and (ii) above revealed a statistically significant increase 

in concentration above background, indicating that contamination may be due to natural variation.

378 Groundwater monitoring has documented MCL exceedances for arsenic in one surge pond compliance well and 

lead in one well at a metal cleaning waste pond that also receives fly ash. Selenium has been reported at the CCR 

landfill monitoring wells at 3.5 times the MCL in a groundwater zone that discharges to the surface water. Cleco 

Corporation, in its comment to the October 2011 NODA’s docket: EPA-HQ-RCRA-2011-0392-0278, denies that 

the source of the selenium exceedance was in the landfill, because it was measured in MW-2A, a well located upgradient of the landfill. Onsite groundwater exceeded EPA SMCLs for sulfate, and TDS - in 28 of 30 coal ash pondarea wells at up to a half-mile from the nearest disposal unit and at concentrations up to x28 the SMCL. When the 

April 2008 compliance well groundwater results are compared to the sole “reference well” or background well 

(OW-27, Zone 4) at the site, the reported groundwater values far exceed the reference values, which are as follows: 

TDS, 513 mg/L; sulfates, 224 mg/L; chlorides, 17 mg/L; iron, 0.522 mg/L; and pH, 6.82 units. CLECO concluded 

that the high concentrations in the down-gradient wells may be due to lignitic clays and lignite beds that are present 
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EIP (2010a) also indicates that LDEQ required assessment monitoring of the disposal units in 2008; 

however, no offsite evaluation was required. 

Evaluation against Proven Damage Criteria379

Other Considerations

 There are reportedly two private drinking water wells within a two mile radius and one public 

drinking water well within five miles of the site. 

 Although the landfill and ponds are separate units, co-managed wastes such as the limestone 

runoff pond, the lignite runoff pond, and the metal cleaning waste pond are located onsite and 

could have an effect on groundwater beneath other CCR disposal units. 

Resolution: According to EIP (2010a), in 2008, LDEQ required that assessment monitoring activities be 

conducted at the bottom ash ponds, the surge/auxiliary pond, the metal cleaning waste pond, the plant 

discharge pond, the lignite runoff pond, and the fly ash-scrubber sludge landfill. However, no assessment 

activities have included any off-site or off-property sampling points. LDEQ later approved a return to 

detection monitoring and the revised groundwater sampling and analysis plan submitted in May 2009. 

Statistically Significant Increases (SSIs) for specific conductance and alkalinity for the August and 

December 2009 sampling events required that the facility initiate re-sampling and assessment monitoring, 

and/or demonstrate that the contamination was due to an alternate source or natural variation.

USWAG claims that this Site does not meet the criteria for a damage case.380

 

in the subsurface, and promised to evaluate the trend further in future sampling events. Cleco Corporation, in its 

comment to the October 2011 NODA’s docket: EPA-HQ-RCRA-2011-0392-0278, reiterates its claim that variable 

SMCL levels from the 2009 second semiannual ground water sampling are due to natural variation in groundwater 

quality.

379 ICF (2010a).

380 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0211. “Louisiana DEQ required assessmentmonitoring activities for the bottom ash ponds, surge/auxiliary pond, metal-cleaning waste pond, plant discharge 

pond, lignite runoff pond, and fly ash scrubber‐sludge landfill. No off‐site monitoring was required. This case does 

not meet the criteria for a damage case because the allegations do not contain any documented evidence of off‐site 

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, lead, and selenium.

 Onsite groundwater data exceeded EPA SMCLs for sulfate 

and TDS. 

 Onsite groundwater data exceeded the EPA Health 

Advisory Level for 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

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
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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 

and there are no other impact or damage claims. Onsite monitoring has been required by LDEQ; however, 

there are no other regulatory corrective actions, administrative rulings, or court decisions associated with 

the landfill and 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 #15, 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 #15. ICF, 10/2010.

Response to EPA Request for Information (2009): 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/cleco.pdf Accessed May 2012 

AMEC (2011): Report of Dam Safety Assessment of Coal Combustion Surface Impoundments, Central 

Louisiana Electric Company (CLECO), American Electric Company (AEP), Southwest Electric Power 

Company (SWEPCO), Dolet Hills Power Station, Mansfield, Louisiana, AMEC Earth & Environmental, 

Inc., May 2011. Accessed Online May 2012.

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

Thomas and Murray (1989): Clay Mineral Segregation by Flocculation in the Porters Creek Formation. 

A. R. Thomas and H. H. Murray. Clays and Clay Minerals, Vol. 37, No. 2, 179-184, 1989. Accessed 

Online May 2012.

http://www.clays.org/journal/archive/volume%2037/37-2-179.pdf

Troy (1993): Coal and Lignite in Louisiana, Alan A. Troy, Technology Assessment Division, Louisiana 

Department of Natural Resources, May 14, 1993. Accessed Online January 2013.

http://dnr.louisiana.gov/index.cfm?md=pagebuilder&tmp=home&pid=305#plants

PTb21. Rodemacher Power Station381, CLECO Power, LLC, Lena, Rapides Parish, 

Louisiana

 

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

based criteria.”

381 Now: The Brame Energy Center. Cleco Corporation’s comment to the October 2011 NODA’s docket: EPA-HQRCRA-2011-0392-0278.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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Type: Landfill, Ash Ponds, and Coal Pile.

Background and Description: The Rodemacher Power Station located in Lena, Louisiana has 

disposed of coal combustion residual (CCR) from CLECO Power, LLC in landfills and ash ponds since 

1982.382 The site consists of a coal pile, as well as several disposal units including a 109 acre, 560 acrefeet capacity fly ash pond; a 36 acre, 740 acre-feet bottom ash pond;383 a landfill;384 two metal cleaning 

waste ponds; a coal sedimentation pond;385 an 8 acre landfill leachate collection pond;386 and an 

unpermitted clarifier sludge sedimentation pond. The overall disposal area extends over about 0.75 of a 

mile and it straddles Lake Rodemacher and the Red River and Bayou Jean de Jean.387 Groundwater has 

been monitored onsite since 1983; however, no offsite assessment or monitoring has been required. The 

impoundments have a Louisiana Pollutant Discharge Elimination System (LPDES) permit388 to control 

their effluents discharge into Rodemacher Lake. In 2009, CLECO submitted a request for a vertical 

expansion of the existing Type I industrial landfill and an associated leachate collection/run-off pond, to 

 

382 The Power Station began operation in 1975. Its total nameplate capacity is 1,523 MW. However, only the 523 

MW, Unit 2 (online since 1982) is coal-fueled (with Powder River Basin coal). The other two units are fueled as 

follows: the 440 MW Nesbitt Unit 1 (online since 1975), natural gas and low-sulfur fuel oil; and the 600-MW net 

circulating fluidized bed Madison Unit 3 (online since 2010), multiple solid fuels (the plant was designed to burn 

Illinois #6 coal, Powder River Basin coal, lignite, biomass, and petroleum coke). Currently, Unit 3 is the largest 

100% petcoke–fired CFB plant in North America. http://www.cleco.com/site209.php and 

http://www.powermag.com/coal/Clecos-Madison-Unit-3-Uses-CFB-Technology-to-Burn-Petcoke-and-Balance-theFleets-Fuel-Portfolio_2878.html

383 The surface areas of the Bottom Ash Pond and the Fly Ash Pond cited above in Rodemacher Power Station 

(2009) are different from the corresponding size figures cited in CDM (2011). According to CDM (2011), the 

Bottom Ash Pond’s surface area is 43 acres. This pond is the only impoundment that receives influent from a wet 

sluice process: bottom- and fly ash from generation Units 1 and 2, leachate from the CCR landfill, and stormwater 

runoff. Note that CDM’s (2011, appendix C) Coal Combustion Dam Inspection Checklist Forms’ information 

concerning the liners of both the Bottom Ash Pond and the Fly Ash Pond mismatch the narrative section of the same 

report. Based on the narrative section of CDM (2011), the Bottom Ash Pond has a 3-foot-thick, compacted clay 

liner placed in horizontal lifts of 8 to 10 inches. According to the Permit, the liner was constructed with highplasticity clay with a permeability of 1.1x10-7

to 2.1x10-8 cm/sec, as measured in laboratory permeability tests. The 

Bottom Ash Pond embankments were constructed on very soft to medium stiff clay and silty clay with organics that 

extended at least to 20 feet below the bottom of the pond. Silty sand and sandy silt were encountered in one of the 

test borings at a depth of 12 feet.

According to CDM (2011), dry Fly Ash material is delivered by trucks to the 28-acres Fly Ash Pond. The 

Fly Ash is moistened with water as it is unloaded and placed into the pond. The Fly Ash Pond is lined with a 3-footthick clay liner constructed with material excavated from within the pond. According to the Permit, the liner was 

constructed with material with a permeability of 1.1x10-8 cm/sec, as measured in laboratory permeability tests on 

remolded samples of the clay used for liner material. Based on subsurface soil profiles included in the 1981 Permit, 

portions of the Fly Ash Pond and Leachate Pond embankments were constructed on very soft to medium stiff clay 

and silty clay with layers of silt and sand which extended at least to 50 feet below the bottom of the pond.

384 According to EIP (2010a), the current coal ash management area/Type I landfill seems to have been constructed 

over an old coal ash pond. It was constructed within the existing footprint of the perimeter levee system that was 

constructed in the 1980s and permitted by the Army Corp of Engineers in 1977.

385 The metal waste cleaning ponds and a coal sedimentation pond are not used for storage or processing of CCR

386 Based on CDM’s (2011, appendix C) Coal Combustion Dam Inspection Checklist Forms, the Leach Pond has a 

60-mil HDPE liner with permeability of 1 x 10-7cm/sec.

387 The Site, occupying 6,000 acres, uses man-made Rodemacher Lake as a cooling source for the plant's generating 

units. The lake covers about half of the site. Bayou Jean de Jean is a semi-abandoned meander of the Red River.

388 Permit # LA0008036.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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receive the fly ash and bed ash to be generated from the combustion of fuel(s) slated for operating the 

CFB Madison Unit 3 (coal, petcoke, and biomass).389

According to the Geologic Map of Louisiana, the southeastern portion of the Plant site is underlain by 

Holocene alluvium and natural levee deposits of the Red River and its tributaries. The alluvium deposits 

consist of sandy and gravelly channel deposits mantled by sandy to muddy natural levee deposits, with 

organic-rich muddy back-swamp deposits. Based on subsurface soil information provided in the Permit, 

existing soils present below the embankments consist of clay with layers of sand and silt.390 The 

northwestern, topographically higher parts of the site are within the terrace deposits of Pleistocene-age. 

They comprise more competent silt, clays and sands than their Holocene counterparts, and occasionally 

also contain gravel.391

Lake Rodemacher and the Bayou Jean de Jean are located approximately 50 feet from CCR disposal 

units. Citing recent CLECO reports, EIP (2010a) claims that the uppermost aquifer beneath the waste 

management units flows towards those surface water bodies. Groundwater in the power station area 

where the metal cleaning ponds, the coal sedimentation pond, and a sludge pond are located flows 

towards Lake Rodemacher. Groundwater beneath the ash ponds and the ash management area/landfill 

area flows towards Bayou Jean de Jean to the west and south and the Red River to the north. The 

groundwater gradient is steep – up to approximately 13 percent – and is the steepest nearest the receiving 

water bodies. CLECO Power has determined that the groundwater seepage velocity is the greatest (3.5 

feet per day) at the bottom ash and fly ash ponds where the property line is adjacent to the CCR disposal 

units and where groundwater discharges towards Bayou Jean de Jean and the Red River.

Impact and Damage Claims: EIP (2010a) indicates that levels of arsenic and lead exceeded primary 

EPA Maximum Contaminant Levels (MCLs) in onsite groundwater. Additionally, chloride, pH,392 and 

total dissolved solids (TDS) exceeded secondary EPA MCLs (SMCLs) in onsite groundwater.393 EIP 

(2010a) claims that there have been statistically significant changes in specific conductance and chloride 

and sulfate concentrations, which are indicative of CCR leachate.

EIP (2010a) claims that groundwater monitoring wells at compliance boundaries for a CCR landfill, 

seven ponds, and a coal pile at the Rodemacher Station have been contaminated with arsenic up to 5.75 

times the federal MCL. The contamination is documented at multiple groundwater wells in two areas 

separated by Lake Rodemacher.394 The contamination is flowing from two distinctly separate areas: (i) the 

 

389 According to CLECO Power LLC (2009), the new landfill (Permit No. P-0379) will have a composite liner and a 

leachate collection system. 

390 CDM (2011).

391 CLECO Power LLC (2009).

392 For instance, the September and November 2009 samplings events detected pH values of less than 6.5 (the 

minimum SMCL) in 15 of 21 wells on-site.

393 Cleco Corporation, in its comment to the October 2011 NODA’s docket: EPA-HQ-RCRA-2011-0392-0278, 

claims that there was no statistically significant increase in SMCLs such as TDS, calcium, pH, conductivity and 

alkalinity, suggesting that the CCR units did not cause the observed dissolved substances.

394 Cleco Corporation, in its comment to the October 2011 NODA’s docket: EPA-HQ-RCRA-2011-0392-0278, 

challenges EIP’s (2010a) assertion, by claiming that two of the wells discussed, W1 and W21, were background 

wells. The other wells mentioned with respect to the arsenic exceedances (W4, W15, W17, and W7) did not show in 

combination with the up-gradient wells that a statistically significant increase had occurred, indicating that the 

arsenic was most likely from natural variation and not from the CCR units.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

112

power plant, coal pile area and runoff pond, sludge pond and metal cleaning ponds on the north side of 

Lake Rodemacher; and (ii) the coal ash ponds and CCR landfill area east of the Lake.395

Evaluation against Proven Damage Criteria396

Other Considerations: There are reportedly 36 registered wells within a one mile radius, 12 private 

drinking water wells within a two mile radius, and three public drinking water sources within a five mile 

radius of the site.

Resolution: LDEQ required (in December 2008) complete assessment monitoring onsite. In February 

2010, LDEQ allowed a return to detection monitoring. According to EIP (2010a), Rodemacher Station 

submitted a request for a major permit modification of the coal ash management area to construct a Type I 

landfill, which included a request for a 60-foot height increase in the existing CCR disposal unit, use of 

coal ash as protective cover, and use of an alternate liner (three composite liner options proposed). LDEQ 

deemed the request technically complete and publicly noticed the modification in February 2010.

USWAG claims that this Site does not meet the criteria for a damage case.397

 

395 Heavy metals are not normally sampled in groundwater monitoring at the Rodemacher Station; however, some 

metals were tested as part of Initial Sampling Events (ISEs) in September and November 2009 after issuance of a 

new landfill permit and the installation of new wells. Cleco Corporation, in its comment to the October 2011 

NODA’s docket: EPA-HQ-RCRA-2011-0392-0278, rebuts that the semiannual groundwater reports to LA DEQ 

show sampling and analyses for cadmium, copper, lead, nickel, selenium, thallium vanadium and zinc as well as 

numerous other parameters.

396 ICF (2010a).

397 Comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211): “Louisiana DEQ required assessment 

monitoring in 2008 for groundwater constituent concentrations that may have been affected by CCW ponds.

LDEQ allowed a return to detection monitoring in February 2010. 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 Document [i.e., EIP (2010a)] also claim Damage to Lake Rodemacher, Bayou de Jean, and the Red River 

but provide no surface water sampling or scientific studies of these water bodies to support the claim.”

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 and lead.

 Onsite groundwater exceeded EPA SMCLs for 

chloride, pH, 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 I (Cases 1-32) December 2014

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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 

and there are no other impact or damage claims. Onsite monitoring was required by LDEQ; however, 

there are no other regulatory corrective actions, administrative rulings, or court decisions associated with 

the landfill, ash ponds, or coal pile.>

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 #16, 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 #16. ICF, 10/2010.

Rodemacher Power Station (2009): Rodemacher 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), May 14, 2009. Accessed Online May 2012. 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/cleco-rod.pdf 

CDM (2011): Assessment of Dam safety of Coal Combustion Surface Impoundments, Cleco Corporation, 

Brame Energy Center, Lena, Louisiana, CDM, March 14, 2011. Accessed Online May 2012.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/rodemacher-brame_final.pdf

CLECO Power LLC (2009): CLECO Power LLC, Boyce, Rapides Parish, Louisiana. Solid Waste Permit 

Modification, Ash Management Area, AI#2922/D-079-0390/P-0379. Prepared by Providence, Baton 

Rouge, Louisiana, Project No. 002-050; Submitted to Louisiana Department of Environmental Quality 

(LDEQ), November 2009. Accessed Online December 2012.

http://edms.deq.louisiana.gov/app/doc/view.aspx?doc=45866128&child=yes

PTb22. Brandywine Coal Ash Landfill, Mirant Mid-Atlantic, LLC,398 Brandywine,399

Prince George’s County, Maryland

Type: Landfill, Leachate- and Waste Water Ponds.

Background and Description: The Brandywine Coal Ash Landfill site is an active coal ash landfill 

operated by Mirant Maryland Ash Management that has been receiving fly- and bottom ash since the 

 

398 On December 3, 2010, Mirant Mid-Atlantic merged with RRI Energy, Inc. The company resulting from the 

merger of Mirant and RRI Energy is known as GenOn Mid-Atlantic, Inc. In December 2012, GenOn was purchased, 

in turn, by NRG Energy.

399 The Barndywine Landfill is located at11700 North Keys Road, Brandywine, MD.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

114

early 1970s (8.5 million tons as of the end of 2009).

400

 Most disposal pits are unlined,401 some have 

leachate collection systems and one has a synthetic liner.402 There is also wastewater treatment on the site 

consisting of four settling ponds that collect and treat the leachate, which is discharge from four outfalls 

into Mataponi Creek, a tributary of the Patuxent River and part of the Chesapeake Bay watershed.403

Shallow groundwater on the site also discharges to Mataponi Creek. 

An MDE report (August 12, 2008) identified, based on monitoring data from 2002 through 2008, 

exceedances of DWSs in groundwater and exceedances of WQCs for aquatic life in surface water, due to 

migration of pollutants to groundwater and surface water from leaks in multiple disposal pits and ponds, 

and direct pollutants’ discharge to surface water from four outfalls.

Impact and Damage Claims: Groundwater: EIP (2010) indicates that there is contamination of onsite 

groundwater, including cadmium above its primary EPA Maximum Contaminant Level (MCL), as well as 

aluminum, chloride, iron, manganese, sulfates and total dissolved solids (TDS) above secondary MCLs.

Surface water: EIP (2010) also notes contamination of offsite surface water in Mataponi Creek with 

cadmium and lead above water quality criteria downstream of the site. Selenium levels in discharge from 

outfalls were noted to consistently exceed water quality criteria between 2006 and 2008.

Windblown ash from the landfill produces dense clouds of fugitive dust from large piles of uncovered ash. 

The landfill is located 250 yards from a children’s playground, several hundred yards from a little league 

baseball field and a kid’s soccer field, and within about half-mile from a dozen homes. No air monitoring 

or soil/dust sampling has been completed as of May 2011.404

 

400 The two main CCR feeders are Mirant-Mid Atlantic’s Morgantown Generating Station at Newberg, MD, and the 

Chalk Point Generating Station, Aquasco, MD. For information on the Chalk Point Generation Station, including its 

application for the installation of wet FGD scrubbers, see the March 2008 Maryland Power Plant Research Program 

study at http://esm.versar.com/pprp/bibliography/PPSE-10-3/PPSE_10_3.pdf. 

According to MDNER (2010), in 2009 the Brandywine landfill received 80,586 ton of fly ash and 14,185 ton of 

bottom ash from the Morgantown Generating Station; and 93,586 ton of fly ash and 11,608 ton of bottom ash from 

the Chalk Point Generating Station. According to CEIR (16), in the wake of Mirant Mid-Atlantic, LLC’s 2010 

application to the Maryland Public Service Commission to authorize the modification of the Morgantown 

Generating Station to install a fly ash beneficiation facility to thermally process fly ash into a low-carbon material 

suitable for beneficial reuse, much of the fly ash that was transported from Morgantown and Chalk Point plants to 

the Brandywine Landfill would be diverted for reuse as a Portland cement component. In December 2013, NRG 

Energy has announced plans for either switching from coal to oil or having the Chalk Point Plant retired (May 

2017), which will bring about a significant reduction in the amount of CCRs disposed in the Brandywine Coal Ash 

Landfill: http://www.washingtonpost.com/local/nrg-energy-likely-to-stop-burning-coal-at-plants-in-montgomeryprince-georges/2013/12/15/bb90f268-60f9-11e3-bf45-61f69f54fc5f_story.html and 

https://content.sierraclub.org/press-releases/2013/12/chalk-point-and-dickerson-coal-plants-set-retire.

401 Only one landfill pit, commissioned in 2007, is lined. The composite liner comprises a compacted clay sub-base, 

60-mil PVC geomembrane liner, a 250-mil HDPE geonet, and 18 inches of bottom ash drainage layer.

402 For additional information on the size, history and design of the disposal units at the site, see pp. 10-13 in State

of Maryland v. GenOn Ash (2012).

403 The Mataponi Creek is a fishing and bird watching destination (MyFishMaps.com and MyFishMaps.Com). 

Mataponi Creek flows through Merkle Wildlife Sanctuary, the only sanctuary operated by the Maryland Department 

of Natural Resources. It is the wintering ground for several thousand Canada geese, the largest concentration on the 

western shore of the Chesapeake Bay. Red fox, groundhogs and white-tailed deer, ospreys, herons, hummingbirds, 

and songbirds also inhabit the refuge: http://www.ens-newswire.com/ens/nov2009/2009-11-23-093.asp.

404 An attachment to an e-mail from Lisa Evans, EearthJustice, to A. Livnat, EPA/OSWER, May 10, 2011. Prince 

George’s Cable TV News (CTV) documented the issue in a news segment.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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Resolution: In November 2009, citizens groups and the Maryland Department of the Environment 

(MDE) have each filed an intent-to-sue Mirant for violations of the Clean Water Act (CWA).405 The 

organizations claim that Mirant is discharging pollutants into groundwater without a permit, as well as 

discharging contaminants to surface water via outfalls without proper permits.406

According to GeoOn (Quarterly 2011), in April 2010, MDE filed a complaint against Mirant in the 

United States District Court for the District of Maryland asserting violations of the Clean Water Act and 

Maryland’s Water Pollution Control Law at Brandywine. MDE contends that the operation of

Brandywine has resulted in discharges of pollutants that violate Maryland’s water quality criteria.407

According to GenOn (Quarterly 2011), in June 2011, MDE agreed to stay the litigation related to 

Faulkner and Brandywine while GenOn pursues settlement of allegations related to the three Maryland 

ash facilities (the third being Westland, Dickerson Station’s landfill). As a condition to obtaining the stay, 

GenOn agreed in principle to pay a civil penalty of $1.9 million to the MDE if the Utility were to reach a 

comprehensive settlement regarding all of the allegations related to the three Maryland ash facilities.408

A coalition of citizens groups, which intervened in MDE’s January 2011 lawsuit,409 announced a 

settlement January 14, 2013.410 In a joint motion filed January 2, 2013411 the MDE and GenOn asked the 

court to enter the proposed consent decree. GenOn Energy Inc. would pay a civil penalty of $1.9 million 

and perform remedial actions to prevent future surface water and groundwater contamination from the 

Site’s coal ash leachate ponds. Under the proposed consent decree filed December 21, 2012 in the U.S.

 

405 Notice of Intent to File Citizen Suit for Violations of Clean Water Act at the Brandywine Fly Ash Landfill in 

Prince Geotge’s County, Maryland on behalf of Defenders of Wildlife, Sierra Club, Chesapeake Climate Action 

Network, and the Patuxent Riverkeeper; Jane F. Barrett, University of Maryland School of Law and Jennifer 

Peterson, EIP, Washington DC, Nov. 19, 2009. In April 2010, MDE filed suit in federal court maintaining that the 

disposal site was leaching pollutants in violation of the CWA and state law (Maryland v. Mirant Maryland Ash 

Management LLC, D. Md., No. 100-cv-826, April 2, 2010; 

http://www.mde.state.md.us/assets/document/Mirant_Complaint.pdf).

406 On June 21, 2010, Mirant filed a motion to dismiss arguing: (1) that MDE cannot now hold Mirant in violation 

for discharged pollutants that are known to be constituent parts of a leachate waste stream when that waste stream 

has already been permitted by MDE under the CWA, even if those particular constituents were not detected when 

the application for permit was prepared; and (2) MDE did not provide sufficient notice as to “critical aspects” of its 

CWA claim against Mirant—though it was required to do so. On September 8, 2010, the court denied Mirant’s 

motion without making any findings or providing explanation. Subsequently, Mirant filed its answers and then, filed 

a motion with the court to enter a case management schedule for discovery and trial based on a bifurcation of the 

case into separate liability and remedy phases (Fehrenbach et al., 2011).

407 The complaint requests that the court, among other things, (a) enjoin further disposal of coal combustion waste at 

Brandywine, (b) require Mirant to close and cap the existing open disposal cells within one year, (c) impose civil 

penalties and (d) award them attorney’s fees. Mirant dispute the allegations. In September 2010, four environmental 

advocacy groups became intervening parties in the proceeding. 

408 Accordingly, GenOn also developed a technical solution, which included installing synthetic caps on portions of 

each of the ash facilities. During the three months ended June 30, 2011, GenOn accrued $28 million for the 

estimated cost of the technical solution. In October 2011, the MDE informed GenOn that its proposed technical 

solution was not adequate.

409 Defenders of Wildlife, the Sierra Club, the Patuxent Riverkeeper, and the Chesapeake Climate Action Network:

http://op.bna.com/env.nsf/id/aada-93xsu7/$File/Entry%20Consent.pdf

410 Maryland v. GenOn MD Ash Management, D. Md., No. 8:11-CV-01209, proposed consent decree filed 

December 21, 2012.

411 State of Maryland v. GenOn Ash (2013).
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

116

District Court for the District of Maryland,412 GenOn MD Ash Management would cap and seal all closed 

cells in the landfill and install liner systems in all leachate and stormwater collection ponds. GenOn MD 

Ash Management also would perform a study to characterize the levels of contamination at the Site. 

GenOn also would have to develop and implement a plan to control fugitive coal dust, which can be 

released from the ponds.

In June 2013, MDE has brought a water pollution lawsuit against the Chalk Point and Dickerson plants 

contending that wastewater released into the Patuxent and Potomac Rivers, respectively, contained illegal 

amounts of nitrogen and, in one instance, phosphorous.

413

Evaluation against Proven Damage Criteria414

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

cadmium have been found on site. While offsite surface water and outfall discharges exceeded 

unspecified water quality criteria, there is no scientific study available that explicitly documents evidence 

 

412 State of Maryland v. GenOn Ash (2012). The Consent Decree applies also to GenOn’s Faulkner Ash 

Management Facility in Charles County and to the Westland Ash Management Facility, the Dickerson power plant 

in Montgomery County.

413 Maryland sues NRG Energy, alleging water pollution at two coal-fired generators, The Washington Post, August 

3, 2013: http://articles.washingtonpost.com/2013-08-03/local/41028727_1_nrg-energy-genon-energy-patuxentriverkeeper.

414 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.

 Onsite groundwater data exceeded EPA SMCLs for iron, 

aluminum, manganese, sulfates, chlorides 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)

 Cadmium and lead were found offsite surface water in 

Mataponi Creek at levels above unspecified water quality 

criteria. 

 Selenium was above water quality criteria in outfall 

discharges from the site, though it does not appear to be 

monitored in other offsite surface water.

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 late 2009 and early 2010, citizen groups and MDE sent 

notices of intent to sue Mirant MD Ash Management and 

Mirant Mid-Atlantic for violations of the CWA.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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of damage to human health or the environment. There are no administrative rulings or court decisions 

associated with the site, however, notices of intent to sue have been filed by citizen groups and MDE.>

References

State of Maryland v. GenOn Ash (2013): State of Maryland, Department of the Environment, Plaintiff, v. 

Genon MD Ash Management, LLC, et al. Defendants. Civil Action Nos. 8:11-CV-01209-PJM 8:10-CV00826-PJM 8:12-CV: Joint Motion for Entry of Consent Decree, filed January 2, 2013. Accessed Online 

October 2014.

http://op.bna.com/env.nsf/id/aada-93xsu7/$File/Entry%20Consent.pdf

State of Maryland v. GenOn Ash (2012): State of Maryland, Department of the Environment, Plaintiff, v. 

Genon MD Ash Management, LLC, et al. Defendants. Civil Action Nos. 8:11-CV-01209-PJM 8:10-CV00826-PJM 8:12-CV: Consent Decree, filed December 21, 2012. Accessed Online October 2014.

http://op.bna.com/env.nsf/id/aada-93xrhl/$File/Maryland%20Coal%20Ash%20Final.pdf

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 #8. 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 #8. ICF, 10/2010.

Letter from Maryland Dept. of the Environment to Mirant, January 15, 2010, Intent to Bring Suit. 

Accessed Online July 2012. 

http://www.newageblastmedia.com/MDE_OS_Mirant_Notice_Letter_fin01152010sw.pdf 

Fehrenbach et al., (2011): Chapter 15, Environmental Law. John Fehrenbach et al. Winston & Strawn 

LLP (2011). Accessed Online July 2012.

http://www.winston.com/siteFiles/Publications/Ann.Rev.11ch15%20Environmental%20Law.pdf

MDNER (2010): 2010 Coal Combustion Byproduct Generator Reports, Maryland Department of the 

Environment. Accessed Online July 2012.

http://www.mde.state.md.us/programs/Land/SolidWaste/CoalCombustionByproducts/Pages/2010CCBGe

neratorReports.aspx 

MyFishMaps.Com. Accessed Online July 2012. 

http://www.myfishmaps.com/topo-maps/US-fishing-locations/Maryland/Maryland-Streams/PrinceGeorge's/Lower_Marlboro/Mataponi-Creek/

MyFishMaps.Com. Accessed Online July 2012. 

http://www.mybirdmaps.com/topo-maps/US-birding-locations/Maryland/Maryland-Streams/PrinceGeorge's/Lower_Marlboro/Mataponi-Creek/

GeonOn (Quarterly 2011): GenOn Mid-Atlantic, LLC. U.S. Securities and Exchange Commission, Form 

Q-10: Quarterly Report for the Quarter Period Ended September 30, 2011. Accessed Online July 2012. 

http://www.knowledgemosaic.com/Gateway/SECData/PDFCache/11/0001193125-11-

303255/kmcomposite.pdf
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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CEIR (16): Maryland Power Plants and the Environment: A review of the impacts of power plants and 

transmission lines on Maryland's natural resources. The 16th edition of the Cumulative Environmental 

Impact Report (CEIR-16), January 26, 2012. Accessed Online July 2012. 

http://esm.versar.com/pprp/ceir16/intro.htm

PTb23. Mirant415 Dickerson’s Generation Station’s Westland Disposal Site, Montgomery 

County, Maryland

Type: Landfill and Leachate Treatment Ponds.

Brief Description: The Dickerson Generating Station is located on the Potomac River near Dickerson, 

south of the Monocacy River in upper Montgomery County, Maryland. 416, 417 The facility includes the 

Westland CCR monofill and ash settling and leachate treatment ponds. 418, 419 The permitted Disposal Site 

occupies about 288 acres, of which 180 acres are utilized for the actual disposal of CCR. More than 3.8 

million cubic yards of CCR have been deposited at the Westland Disposal Site over the last 30-years.420

The Disposal Site consists of three distinct areas - Mirant Ash Areas A, B, and C. Area C is the 

westernmost disposal site: it has been completely filled, capped, and vegetated. Area B is located 

immediately to the west of Area A and is currently the only active disposal site. Both Areas B and C 

comprised originally unlined cells. Area A, located in the easternmost portion of the property, will be 

utilized once Area B reaches capacity.421

 

415 Mirant acquired the electric generating station and approximately 800 acres of the Dickerson site from PEPCO in 

2000. On December 3, 2010, Mirant merged with RRI Energy, Inc. The company resulting from the merger of 

Mirant and RRI Energy is known as GenOn Energy, Inc. In December 2012, in turn, GenOn was purchased by NRG 

Energy.

416 The Station consists of three steam generation units, each rated at 191 MW (base load), in addition to two 147 

MW gas and oil-fired simple cycle combustion turbines, and one 13 MW black-start and peaking turbine. The 

Station fires Appalachian and imported South-America bituminous coal. Coal is delivered to the units by a CSX 

Transportation Corporation (CSXT) rail spur off the main line. A wet FGD scrubber was installed and went online 

late in 2009.

417 According to Maryland Department of Natural Resources (2007-03-19), the coal-fired generating Units 1, 2, and 

3, were constructed in the late 1950s and began operation in 1959, 1960, and 1962, respectively. Condenser cooling 

is accomplished with once-through cooling water from the Potomac River. The once-through water circulation 

system discharges water back into the Potomac River at a rate of up to about 400 million gallons per day. 

418 Maryland Department of Natural Resources (2007-03-19). 

419 According to the Annual Generator Report (2008), in 2008, close to 200,000 tons of fly ash were generated, 93 

percent of which was disposed of at the Westland Ash Site and 7percent was sold for beneficial use (concrete, 

concrete products, and grout). Of the 31,000 tons of bottom ash generated, 63 percent were disposed of at the 

Westland Ash Site, 15 percent were used/stored on site, and 22 percent were sold for snow- and ice control. 

According to the Annual Generator Report (2010), in 2010, 78,369 tons of fly ash were generated, the great majority 

of which was disposed of at the Westland Ash Site. All of the 12,758 tons of bottom ash generated were disposed of 

at the Westland Ash Site. Of the 89,780 tons of FGD gypsum generated, the great majority was transported to 

LaFarge in Buchannan, New York, for use in wallboard manufacturing.

420 Cited quantities are applicable as of the filing of the Notice of Intent to Sue, at the outset of 2011. The total 

disposed of CCR amounts to about 5,827,600 tons: approximately150000 cubic yards of waste are placed at the 

Disposal Site every year.

421 Maryland Department of the Environment (2011) and State of Maryland v. GenOn Ash (2012).
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The Disposal Site plan provides for three settling ponds to collect groundwater and leachate from three 

disposal pits. Ponds 2 and 3 are in use but rarely discharge. Pond 2 is unlined and Pond 3 was not lined 

with a synthetic liner until 2010. Currently, since Area B is the only active disposal site, any leachate 

generated from Area B flows through unlined ditches into Pond 3. Wastewater in the ponds is aerated and 

treated with soda ash before it is discharged through Outfalls 002 and 003. Outfall 002 discharges 

stormwater runoff from Area B to an unnamed tributary leading to the Potomac River. Outfall 003 

discharges storm water runoff from Areas B and C to an unnamed tributary leading to the Potomac River. 

This leachate collection and treatment system fails to prevent leachate from entering waters of the 

State.422

Ground water occurs under unconfined water table conditions in joints, fractures, and bedding planes of 

the shallow bedrock aquifer in the upland portion of the Dickerson site. The Disposal Site lies within the 

Triassic-Age New Oxford Formation,423 comprised of weathered and unaltered sandstone and siltstone 

that is porous and highly water-conductive. The groundwater table lies at a depth of 10 to 20 feet below 

ground level. Flow generally mimics surface topography, with recharge occurring in the upland area and 

groundwater flowing eastward and westward toward discharge areas in the Little Monocacy River and 

Potomac River, respectively. Groundwater at the Disposal Site flows southeast to west following the 

contour of the land and the direction of the streambeds.424 Water resources data collected in the mid1980s indicate that the nearest groundwater users are located about one mile north of the Dickerson site, 

with the Little Monocacy River lying between the site and those users.

Impact: Because the disposal pits were inadequately lined and impermeable caps were not installed, 

rainwater and snow melt leach out pollutants from the CCR. Fractured rock exists northwest of Area B. 

Water flows into this area and then rapidly disappears, facilitating leachate contamination of groundwater, 

detrimentally affecting water quality beneath the fill areas, as shown by increased contaminant levels in 

monitoring wells. Groundwater monitoring confirms that pollutants present in the groundwater discharge 

to "Little Stream" and" Big Stream," which merge and discharge into the Potomac River.425 The Potomac 

is an American Heritage River.

Monitoring results submitted by Mirant Ash and Mirant Mid-Atlantic from groundwater monitoring wells 

around the disposal pits demonstrate unauthorized discharges of sulfates, total dissolved Solids (TDS), 

manganese, iron, chlorides, and aluminum in concentrations that cause or contribute to violations of water 

quality standards.426 Sampling of discharge from Outfalls 002 and 003 reveal concentrations of selenium, 

chloride, sulfates and hardness exceeding water quality standards. Samples collected on March 15, 2010 

from Outfalls 002 and/or 003 revealed excessive amounts of arsenic, barium, chromium, cobalt, copper, 

iron, selenium, and zinc, which violate water quality standards.427 Excessive amounts of arsenic, barium, 

copper, iron, selenium, and zinc were also found in monitoring wells. 

 

422 On July 1, 1995, the DNR issued a National Pollutant Discharge Elimination System (NPDES) Permit No. MD0057584 (State Discharge Permit No. 9l-DP-1680) to the Potomac Electric Power Company (PEPCO), the prior 

owner of the Disposal Site, authorizing the discharge of certain pollutants from Outfalls 001, 002, and 003. In 

December 2000, when Mirant Ash purchased the Disposal Site from PEPCO, the existing discharge permit was 

transferred from PEPCO to Mirant Ash.

423 http://tin.er.usgs.gov/geology/state/sgmc-unit.php?unit=MDTRno%3B2

424 Maryland Department of the Environment (2011).

425 Ibid.

426 MDE NOI (2011).

427 Maryland Department of the Environment (2011). A sample from Outfall 002 revealed a total selenium 

concentration of 12.4ugf/L and a dissolved selenium concentration of 11.3 μg/L. Samples from a Pond near the 

overflow pipe at Outfall 003 revealed a total selenium concentration of 44.7μg/L and a dissolved selenium 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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Resolution: On January 3, 2011, MDE filed notices of intent to sue Mirant Mid-Atlantic LLC and its 

subsidiary, Mirant Maryland Ash Management, in federal court for alleged water pollution violations at 

two of the power generator's sites for disposal of CCR.428 The notice alleges violations at Mirant's 

Westland disposal site in Montgomery County, Maryland, in and around two unnamed tributaries that 

drain into the Potomac River.429 The notice alleges that all of the unauthorized discharges are continuing 

and have been occurring daily since at least December 1, 2005. 

The state contends that the company continues to dump its CCR in unlined landfills, despite 2008 state 

regulations that require liners for ash disposal facilities. State officials said toxic substances in the ash are 

leaching into ground water and nearby surface waters, though they add that the levels of contamination so 

far seem to pose no health risk to nearby residents.430

In June 2011, the MDE agreed to stay the litigation related to Faulkner and Brandywine while GenOn 

pursue settlement of allegations related to the three Maryland ash facilities (Westland included). MDE 

also agreed not to pursue its tentative denial of GenOn’s application to renew its water discharge permit at 

Brandywine and agreed not to act on the utility’s renewal applications for Faulkner or Westland while 

GenOn is discussing settlement. As a condition to obtaining the stay, GenOn agreed in principle to pay a 

civil penalty of $1.9 million to the MDE if the parties reach a comprehensive settlement regarding all of 

the allegations related to the three Maryland ash facilities.431

A coalition of citizens groups, which intervened in MDE’s January 2011 lawsuit,432 announced a 

settlement on January 14, 2013. In a joint motion filed January 2, 2013 the MDE and GenOn asked the 

court to enter the proposed consent decree.433 GenOn Energy Inc. would pay a civil penalty of $1.9 

million and perform remedial actions to prevent future surface water and groundwater contamination 

from the Site’s coal ash leachate ponds. Under the proposed consent decree filed December 21, 2012 in

 

concentration of 42.6μg/L. Samples from Outfall 003 revealed a total selenium concentration of 79. 2 μg/L, and a 

dissolved selenium concentration of 71. 6 μg/L. All of those test results constitute exceedances of the Maryland 

Numerical Water Quality Criteria and the national recommended water quality criteria established by the EPA of 5.0 

μg/L for selenium.

428 MDE NOI (2011) and Gazette.Net (1/5/2011). The action comes after a federal lawsuit filed by the state in 

2010 against Mirant over ash disposal at a third landfill in Brandywine in Prince George's County. The Agency also 

has a pending lawsuit in state court over the Faulkner ash landfill, but said in a news release it now plans to 

consolidate all the cases in federal court.

429 The MDE contends that sampling results from groundwater monitoring wells, from Outfalls 0 02 and 003, and 

from "Little Stream" and" Big Stream," demonstrate that Mirant Ash and Mirant Mid-Atlantic are discharging and 

continue to discharge pollutants, including but not limited to, aluminum, arsenic, barium, beryllium, boron, 

cadmium, chlorides, chromium, cobalt, copper, cyanide, iron, lead, manganese, mercury, molybdenum, nickel, pH, 

selenium, silver, sulfates, TDS, tin, and zinc from the disposal pits, the treatment cells, the settling ponds, and 

through Outfalls 002 and 003 into "Little Stream" and" Big Stream" directly or through discharges to groundwater 

that is hydrogeologically connected to surface waters that are not authorized, or in amounts that are not authorized 

by the Discharge Permit. In addition, sample results of the leachate in the treatment ponds demonstrate the presence 

of unauthorized pollutants in a position likely to pollute" Little Stream" and" Big Stream", tributaries of the Potomac 

River, which constitutes a discharge under Maryland law.

430 The Baltimore Sun (2011).

431 GenOn (Annual 2012).

432 Defenders of Wildlife, the Sierra Club, the Patuxent Riverkeeper, and the Chesapeake Climate Action Network. 

http://op.bna.com/env.nsf/id/aada-93xsu7/$File/Entry%20Consent.pdf

433 State of Maryland v. GenOn Ash (2013).
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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the U.S. District Court for the District of Maryland,434 GenOn MD Ash Management would cap and seal 

all closed cells in the landfill and install liner systems in all leachate and stormwater collection ponds. 

GenOn MD Ash Management also would perform a study to characterize the levels of contamination at 

the Site. GenOn also would have to develop and implement a plan to control fugitive coal dust, which can 

be released from the ponds.

In June 2013, MDE has brought a water pollution lawsuit against the Dickerson and Chalk Point plants 

contending that wastewater released into the Potomac and Patuxent Rivers, respectively, contained illegal 

amounts of nitrogen and, in one instance, phosphorous, and as of August 2013, the parties are trying to 

negotiate a settlement in the case.435

In December 2013, NRG Energy has announced plans for either switching from coal to oil or having the 

Dickerson and Chalk Point Plants retired (May 2017).436

Postscript: This case has come forth after EPA proposed (in June 2010) the Hazardous and Solid Waste 

Management System: Identification and Listing of Special Wastes; Disposal of Coal Combustion 

Residuals from Electric Utilitiesrule. 437 It comprises impacts to both surface water and groundwater 

involving primary and secondary MCLs. However, in the absence of site-specific information concerning 

off-site migration of the contaminants, and considering that MDE has not yet exercised its intent to sue, 

this case is tentatively rated as a Potential Damage Case.

References

State of Maryland v. GenOn Ash (2013): State of Maryland, Department of the Environment, Plaintiff, v. 

Genon MD Ash Management, LLC, et al. Defendants. Civil Action Nos. 8:11-CV-01209-PJM 8:10-CV00826-PJM 8:12-CV: Joint Motion for Entry of Consent Decree, filed January 2, 2013. Accessed Online 

October 2014.

 

434 State of Maryland v. GenOn Ash (2012). The Consent Order applies also to GenOn’s Brandywine Ash 

Management Facility in Prince George's County and to the Faulkner Ash Management Facility in Charles County.

435 Maryland sues NRG Energy, alleging water pollution at two coal-fired generators, The Washington Post, 

August 3, 2013: http://articles.washingtonpost.com/2013-08-03/local/41028727_1_nrg-energy-genon-energypatuxent-riverkeeper. <According to Maryland’s complaint, sulfur dioxide scrubbers and wastewater treatment 

systems were added at the two plants (Dickerson and Chalk Point) -in 2009 and 2010 to comply with the Maryland 

Healthy Air Act, enacted in 2006. The treatment systems included bacteria to remove pollutants from wastewater, 

but the organisms died soon after installation, the state contends. Citing monitoring data submitted by GenOn, the 

state contends that the Chalk Point plant discharged as much as 20 times its annual allotment of nitrogen into the 

Patuxent in some years. Nitrogen, like phosphorus, is a common component of fertilizer. Released into water, it can 

exacerbate algal blooms, which in turn create the oxygen-depleted dead zones that have plagued the Chesapeake 

Bay.> According to the September 3, 2013 Gazette.Net: 

http://www.gazette.net/article/20130903/NEWS/130909898/1124/state-attempts-to-settle-lawsuit-with-dickersoncoal-plant&template=gazette, an MDE spokesman indicated that the parties in the case asked the court to put the 

case on hold for 120 days as they attempt to settle. On August 28, 2013, Judge Marvin J. Garbis ordered a stay in the 

case. In January 2013, Food & Water Watch, Potomac Riverkeeper and Patuxent Riverkeeper — represented by 

Public Justice and the Columbia University School of Law Environmental Law Clinic — filed an intent to sue NRG 

Energy Inc. for federal Clean Water Act violations at the Dickerson and Chalk Point plants as well as a plant in 

Charles County.

436 http://www.washingtonpost.com/local/nrg-energy-likely-to-stop-burning-coal-at-plants-in-montgomery-princegeorges/2013/12/15/bb90f268-60f9-11e3-bf45-61f69f54fc5f_story.html and https://content.sierraclub.org/pressreleases/2013/12/chalk-point-and-dickerson-coal-plants-set-retire.

437 Docket document # EPA-HQ-RCRA-2009-0640-0352.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

122

http://op.bna.com/env.nsf/id/aada-93xsu7/$File/Entry%20Consent.pdf

State of Maryland v. GenOn Ash (2012): State of Maryland, Department of the Environment, Plaintiff, v. 

Genon MD Ash Management, LLC, et al. Defendants. Civil Action Nos. 8:11-CV-01209-PJM 8:10-CV00826-PJM 8:12-CV: Consent Decree, filed December 21, 2012. Accessed Online October 2014.

http://op.bna.com/env.nsf/id/aada-93xrhl/$File/Maryland%20Coal%20Ash%20Final.pdf

Gazette.Net (1/5/2011): Mirant facing lawsuit in federal court over coal waste: Action consolidates two 

coal cases into one legal sweep in federal court. Accessed Online October 2012. 

http://ww2.gazette.net/stories/01052011/montnew190254_32539.php

MDE (2011): Department of the Environment Files Notice of Intent to Sue Mirant for Coal Combustion 

Byproducts Pollution. Maryland Department of the Environment Press Release, January 3, 2011.

Accessed Online October 2014.

http://www.mde.state.md.us/programs/PressRoom/Pages/010311b.aspx

The Baltimore Sun (2011): MD threatens lawsuits over coal ash pollution, January 4, 2011. Accessed 

Online October 2012.

http://weblogs.baltimoresun.com/features/green/2011/01/md_threatens_lawsuits_over_coa.html

CEIR (16): Maryland Power Plants and the Environment: A review of the impacts of power plants and 

transmission lines on Maryland's natural resources: The 16th edition of the Cumulative Environmental 

Impact Report (CEIR-16), January 26, 2012. Accessed Online October 2012.

http://esm.versar.com/pprp/ceir16/intro.htm

Maryland Department of Natural Resources (2007-03-19): Environmental Review of the Air Pollution 

Control Project at the Dickerson Generating Station, Draft for Review, 19 March 2007: Maryland Public 

Service Commission Case No. 9087 docket. Accessed Online October 2012.

http://webapp.psc.state.md.us/Intranet/CaseNum/NewIndex3_VOpenFile.cfm?filepath=C:\Casenum\9000

-9099\9087\Item_18\%5CSections_1-3.pdf

Public Service Commission of Maryland (2011): In the Matter of the Application of Mirant Mid-Atlantic, 

LLC for a Certificate of Public Convenience and Necessity Authorizing the Modification of the 

Morgantown Generating Station in Charles County, Maryland. Before the Public Service Commission of 

Maryland, Case No. 9229, January 14, 2011.

GenOn (Annual 2012): GenOn Energy, Inc., Form 10-K (Annual Report), filed 2/29/12 for period ending 

12/31/11. Accessed Online October 2012.

http://idc.api.edgar-online.com/efx_dll/edgarpro.dll?FetchFilingConvPDF1?SessionID=5cvrFocpOuKoIS&ID=8447354

Annual Generator Report (2008): Mirant Mid-Atlantic, LLC – Dickerson Generating Station, Coal 

Combustion Byproduct (CCB) Annual Generator Tonnage Report, Calendar Year 2008: Submitted to the 

Maryland Department of the Environment, March 3, 2009. Accessed Online October 2012.

http://www.mde.state.md.us/programs/Land/SolidWaste/CoalCombustionByproducts/Documents/www.m

de.state.md.us/assets/document/MCCULLOUGH_MIRANT_CORP_DICKERSON_MORGANTOWN2.

pdf
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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Annual Generator Report (2010): Mirant Mid-Atlantic, LLC – Dickerson Generating Station, Coal 

Combustion Byproduct (CCB) Annual Generator Tonnage Report, Calendar Year 2010: Submitted to the 

Maryland Department of the Environment, February 25, 2011. Accessed Online October 2012.

http://www.mde.state.md.us/programs/Land/SolidWaste/CoalCombustionByproducts/Documents/2010%

20CCB%20Generator%20Reports/Dickerson%20Generating%20Station%202010%20CCBC%20Report.

pdf

PTb24. Karn/Weadock Generating Facility,438 Consumer Energy, Saginaw, Bay County, 

Hampton Charter Township, Michigan

Type: Surface Impoundments (Regulated as Landfills).

Background and Description: The Karn and Weadock landfills are two large, unlined surface

impoundments located near the Saginaw River and Saginaw Bay of Lake Huron (about 21 miles north of 

Saginaw), that were built in phases at Consumer Energy’s Karn/Weadock Generating Facility in 1959 and 

1961.439 Ash from the Karn/Weadock power plant was previously sluiced into the impoundments,440 while 

the surface water discharges were regulated by NPDES discharge permits: for many decades, there was 

not much regulation of groundwater discharge quality, just some monitoring. The Karn and Weadock 

impoundments became regulated as landfills in 1986 and 1992, respectively, and both landfills have by 

now transitioned to dry ash systems.441 They are presently permitted as Type III Low Hazard Industrial 

 

438 According to SourceWatch, 

(http://www.sourcewatch.org/index.php/Karn/Weadock_Generating_Complex_Expansion) and to Consumers 

Energy (http://www.consumersenergy.com/content.aspx?id=1335), the Karn/Weadock generating complex is 

Consumers Energy’s largest power production site. It consists of three separate plants: the 310-megawatt (MW) 

coal-fueled Weadock plant; the 511-MW coal-fueled Karn 1 and 2 plant; and the 1,276-MW natural gas- and oilfueled Karn 3 and 4 plant. Together, the six Karn/Weadock units can generate up to 2,101 MW. Weadock coalfueled unit 1 began operating in 1940, and Weadock units 7 and 8 began operating in 1955 and 1958, respectively. 

Karn coal-fueled units 1 and 2 began operating in 1959 and 1961, respectively. Karn units 3 and 4 began operating 

in 1975 and 1977, respectively. In 1980, Weadock’s Units 1-6 retired. The coal-fired, base load plant uses annually 

3 million tons of a blend of western and eastern coal, which it receives by ship and rail. The two oil and gas units are 

used as peak demand units. The plant uses annually 1.6 billion cubic feet of natural gas and 23 million gallons of 

fuel oil.

Early in December 2011, Consumers Energy announced that in response to existing and pending federal 

and state environmental regulations and ongoing market conditions, the company decided to suspend in 2015 the of 

operation of the two coal-fueled units at the 2,101 MW Karn/Weadock Generating Complex, in addition to 

suspending five additional smaller units elsewhere in Michigan (a total capacity of 950 MW; Power Engineering, 

2011). Then, in late September, 2013, Consumers Energy received approval to delay the retirement of the two coalfueled units at Karn/Weadock Generating Complex because of increased power demand in the state and concerns 

about power supply reliability. The approval gives Consumers the option of continuing operation at the 

Karn/Weadock Plant until April 2016 (Power Engineering, 2013). In October 2013, Consumers Energy announced 

plans to demolish the Weadock plant in April 2016 pending bond approval from the Michigan Public Service 

Commission and approval from the company's Board of Directors (Mlive, 2013).

439 EIP (2010); however, according to Michigan DEQ Info Sharing (2009), these impoundments were built in stages 

in the 1940s and 1970s. 

440 Together, they cover 174 acres and have a capacity of 4,175,000 cubic yards. According to Sierra Club (2010), 

Consumers Energy has two landfills on Saginaw Bay: the 292-acre Weadock site and the 172-acre Karn site (171-

acres according to DEQ’s 2009 Operating Permit).

441 Industrial waste in Michigan is regulated under the provisions of Part 115, Solid Waste Management, of 

Michigan’s Natural Resources Environmental Protection Act (NREPA), Public Act 451 of 1994, as amended. Coal 
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Landfills.442 Wastewater discharged from the Site, including from the Karn and Weadock Disposal Areas, 

is regulated under the same National Pollution Discharge Elimination System (NPDES) permit. Each 

discharge location has its own set of discharge requirements.

Fly ash has not been placed in the Karn Disposal Area since February 2009. Currently, fly ash from the 

Karn facility is pumped in a dry condition to the Weadock Disposal Area by the dry fly ash handling 

system. Bottom ash slurry is sluiced from the Karn plant into the Karn Disposal Area via four above 

ground steel pipelines. The bottom ash slurry flows through a series of channels and ponds designed to 

promote settlement of the bottom ash prior to discharging at the NPDES outfall into the Karn plant 

Discharge Canal. The Karn Disposal Area is authorized to discharge a maximum of 21.753 million 

gallons per day (MGD) of fly ash and bottom ash transport water, chemical metal cleaning wastes, coal 

pile runoff, miscellaneous low volume wastes and stormwater runoff. Water is discharged from Pond F to 

the Discharge Canal, which discharges into Saginaw Bay.443

Prior to 2009, fly ash from the Weadock plant was hydraulically discharged to the ash disposal area, 

where the ash was allowed to settle by travelling through a series of channels. Bottom ash was 

hydraulically discharged to the bottom ash pond, as it does today, where it is allowed to settle and sluice 

water is conveyed to the NPDES discharge structure though channels and culverts.444

The original impoundments are located on reclaimed state bottomlands (marshes filled with dredge 

deposits), ’known areas of environmental impact from various sources.’445 Inorganic forms of several 

heavy metals, detectable in surrounding monitoring wells, are naturally occurring in the soils and geologic 

substrata in the area. The area in Saginaw Bay where the river enters has been designated an Area of 

Concern (AOC) by the U.S./Canada Joint International Commission for shared water resources for 

 

ash impoundments in Michigan are exempt from regulation under the Michigan Dam Safety Rules, Part 315 of the 

NREPA, because they contain Type III wastes. The Karn Disposal Area operates under MDEQ Solid Waste 

Disposal Operating License No. 9234 (Operating License), which must be renewed every five years. The current 

Operating License expires on October 15, 2014.

For plans to move away from coal as the only fuel, see: Consumers Energy cancels Karn/Weadock expansion and 

announces retirement of two units at Karn/Weadock complex: 

http://www.sourcewatch.org/index.php?title=Weadock_Generating_Plant; and Consumers Energy drops plans for 

coal-fired plant: http://www.msnbc.msn.com/id/45530279/ns/us_news-environment/t/consumers-energy-dropsplans-coal-fired-plant/, 12/2/2011.

442 The D E Karn 1 and 2 Solid Waste Disposal Area Operating License (2009) and The JC Weadock Solid Waste 

Disposal Area Operating License (2009). The Karn Landfill’s permitted area contains Areas A, B1, B2, C, D1, D2, 

E and F, including ash settling basins, clarification ponds, and ash transport ditches. These ponds were created 

between 1965 and 1977 by constructing interior divider dikes within the Karn Disposal Area. Ponds A, B, and C 

were intended for storage of dry compacted ash. Ponds D, E, and F were used as settling and clarifying ponds for the 

coal ash slurry water prior to discharge. In addition to the original pond areas A, B, C, D, E, and F, the Weadock’s 

Landfill permitted area (Permit # 9233) contains ash settling basins and ash transport ditch. The total ash disposed 

annually, including ash produced at Karn, is about 228,000 cubic yards.

Both permits include a tentative groundwater compliance Groundwater/Surface water Interface (GSI)

monitoring program, financial assurance, a requirement for a revised closure plan, and a requirement for submitting 

for review a structural analysis of the dike stability for the landfill’s external dikes. In addition, the Karn 1 and 2 

Permit includes also a requirement for a slurry wall and hydraulic gradient control system plan (with construction to 

begin on or before June 30, 2012 and be completed on or before October 15, 2014), whereas the Weadock Permit

also includes a requirement for a soil-bentonite cutoff-wall construction plans and construction certification for 

same.

443 GZA GeoEnvironmental (2011).

444 Dewberry & Davis (2011).

445 EIP (2010) and reference therein. 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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reasons including potential damage to fish or wildlife populations and/or drinking water restrictions. The 

AOC designation is a result of multiple sources of contamination.446 However, EIP (2010) also notes a 

2005 Michigan Department of Environmental Quality (DEQ) report that determines the Karn and 

Weadock landfills are major contributors to arsenic contamination in the AOC.

In 1982, some problems with groundwater under the landfills were noticed by Consumer Energy and 

discussed with the DNR (now the DEQ). In 1986, Michigan’s Water Resources Commission authorized 

discharges from these ash lagoons to groundwater as not usable aquifers, because it had little data 

quantifying any concerns for pollutants.447, 448 The DNR embarked upon licensing the Karn and Weadock 

impoundments as solid waste landfills in order to apply additional state groundwater monitoring outside 

the landfills: Variances (approximately 14-16) were necessary to capture the impoundments under the 

solid waste law for landfills, as not typical landfills.

Seventeen monitoring wells are present at the Karn Disposal Area. Water sampling is conducted in 

accordance with a MDEQ-approved Hydrogeological Monitoring Plan approved on March 1, 2010. 

Annual collection of unfiltered leachate samples is performed at two monitoring wells located within the 

Karn Disposal Area, LH-101 and LH-102. Quarterly collection of water samples is performed at a 

minimum 15 monitoring wells surrounding the Karn Disposal Area.449 

The Karn and Weadock plants are located approximately 30 miles east of the center of the Michigan

Basin, a broad structural and depositional basin formed during the Paleozoic time. The site is underlain by 

about 14,000 feet of Paleozoic sediments deposited on Precambrian basement rock. The formations 

generally dip toward the northwest into the center of the basin. The Karn/Weadock Disposal Area is sited 

on native alluvium and lacustrine soils that are underlain by consolidated glacial till.450 Lacustrine clays 

and silts are typically found chiefly underlying extensive, flat, low lying areas formerly inundated by 

glacial Great Lakes. The glacial till layer generally exists at a depth of 25 to 75 feet below the natural 

ground surface. Bedrock (the Saginaw Formation) generally exists at 90 feet below the natural ground 

surface.451 This formation, which consists of early Pennsylvanian-age deposits, is comprised of gray and 

black shales, interbedded with sandstones, calcareous sandstones, siltstones and occasional limestone 

lenses.

 

446 EPRI’s comment (EPA-HQ-RCRA-2009-0640-9765) claims that the AOC is a very large area (1,143 square 

miles) of contaminated sediments, including a wide range of metals and organic compounds; PCBs are reportedly 

the most significant sediment contaminants (US EPA, 2010; Public Sector Consultants, Inc., 2000). EPRI describes 

the sources of metal contamination, including metal casting industries and forge operators, as being upriver from the 

Karn/ Weadock facilities.

447 Michigan DEQ (2009a): Part 115, Rule 309(4) for industrial waste impoundments allows free liquids to be 

discharged in accordance with a permit which is issued under part 31 of the Act and which considers the effect of 

the discharge on surface and groundwater.

448 Michigan DEQ comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0191.

449 Namely, MW-31, OW-32, MW-32, MW-33, OW-34, MW-35, OW-35, MW-36, MW-37, OW-37, MW-38, MW39, OW-40, MW-10R, and MW-11.

450 The glacial deposits are of two types: outwash which is sorted and stratified sand deposited from glacial melt 

waters and till which is an unsorted, non-stratified mixture of clay interspersed with varying amounts of silt, sand 

and gravel deposited directly from glacial ice. The lacustrine deposits are organic clays, silts and sands that were 

deposited in or on the shores of glacial lakes formed during interglacial and postglacial times. The alluvial deposits 

consist of sands that were deposited by the adjacent Saginaw River (Dewberry and Davis, 2011 and a reference 

therein; for a map of Quaternary deposits, see virtual page 365).

451 GZA GeoEnvironmental (2011).
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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Impact and Damage Claims: EIP (2010) indicates that there is contamination of onsite groundwater 

with arsenic above the primary MCL and high levels of boron. Monitoring at the Groundwater/Surface 

water Interface (GSI) encountered boron up to 19.4 mg/L and arsenic up to 1.4 mg/L452 (the 

corresponding mixing zone criteria are 21 mg/L for boron and 0.540 mg/L for arsenic). EIP (2010) also 

notes arsenic was found above the primary EPA MCL in a well in Lake Huron (outside of the power 

plant’s property). This well monitors the quality of groundwater discharging into the lake. Exceedance of 

Michigan’s health-based standard for lithium in discharge water is also documented.453

The Utility claims that:454 (i) Average arsenic levels in sediment in the vicinity of the landfills are 

significantly lower (10mg/kg) than the corresponding levels in background samples in the Saginaw Bay 

(16.6mg/kg); (ii) the groundwater determination cited in EIP (2010) is at variance with the DEQ 2009 

findings, whereby some of the pollutants were heading towards Saginaw Bay, but no transect data found 

any reaching it above WQSs; (iii) the surface water determination is not supported: the 2005 Natural 

Resource Tehnology (NRT) Phase II Final Report notes that high arsenic levels in the sediment do not 

lead to concentrations of concern in surface water. Natural attenuation (e.g., arsenic precipitating with 

sulfides and co-precipitating with iron oxides) occurs as the reduced groundwater approaches the oxic 

surficial sediment zone, removing the arsenic from the venting water; and finally, (iv) MCLs should not 

be applied to the arsenic levels in this designated non-usable aquifer.

Evaluation against Proven Damage Criteria455

Resolution: As discharges to the Great Lakes became more tightly regulated subject to EPA’s National 

Toxics Rule in the late 1990s, in 2004 DEQ developed tighter leachate and groundwater venting standards 

for surface waters at the GSI. Also, with the advent of better low-concentration test methods for mercury 

 

452 For arsenic, this and similar values were measured in leaching wells inside the Karn Landfill.

453 According to information accessed through a FOIA request and summarized in Sierra Club documents (Sierra 

Club, Undated, and Sierra Club, 2010) and in EIP (2010), <The site sits at the mouth of the Saginaw River which 

flows into Saginaw Bay; the source of 34,000 Bay City residents’ drinking water. Along with arsenic and boron, 

these landfills have been known to be discharging lithium and sulfate into Saginaw Bay since 2002.>

454 Consumers Energy comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0212.

455 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 MCLs 

for arsenic.

 Offsite groundwater data at one well located in Lake 

Huron had arsenic above the primary EPA MCL, but did 

not clearly implicate CCRs from the landfills as the 

source.

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

 DEQ and Consumers Energy negotiated a consent decree 

requiring slurry walls to be built to stop landfill leakage. 

The project is already underway – one slurry wall has 

been completed and the other is under construction. 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

127

and other constituents, concerns grew for persistent toxics and heavy metals in the Saginaw River and 

Bay systems. In February 2002, the recognition of increased concentrations of some contaminant plumes 

outside the landfills triggered a DEQ request for more studies to better define their extent. 

In 2004, DEQ required extensive monitoring studies and that if needed, Consumers Energy proceed with 

corrective actions. The 2004-2007 studies showed that some of the pollutants were heading toward the 

Saginaw Bay, but no transect data found any reaching Bay above water quality criteria. Evaluations of 

data were complicated by the natural background concentrations of many parameters (e.g., arsenic, 

mercury), likely low-level contamination coming from the dredge spoils piles, and potential influences of 

groundwater from the Saginaw River itself.

To protect the Saginaw Bay as a drinking water supply, in 2007 DEQ Water Bureau calculated venting 

(GSI mixing zone) criteria for all parameters of concern: inorganic arsenic (organic forms of arsenic 

bioaccumulate in biota), boron, phosphorous, and mercury. Once it was realized that venting may exceed 

the 2007 calculated criteria in some spotty locations, Consumers Energy was required to design a slurry 

wall for the Weadock facility (a landfill with much remaining capacity). In December 2008, Consumers 

Energy completed the construction of Weadock slurry wall.456 This slurry wall reduces the flux of 

pollutants to single digit percentage points of the pre-wall venting flux. 

In August 2009, DEQ revised/corrected the GSI criteria for the quality of groundwater that can vent to the 

River and Bay while still protecting for human health and the environment. In September 2009, DEQ 

issued a Consent Decree requiring slurry walls to be built to stop leakage also at the Karn (a lowremaining capacity landfill). Requirements for further investigation and definition of the site’s hydraulic 

conditions and the GSI characteristics were included in the operating licenses issued for these facilities in 

October 2009, which include the installation of 49 monitoring wells.457 

DEQ concedes that whereas as of late in 2009 there were no known violations, there was also a lack of a 

certain proof of compliance for some parameters. Therefore, confirmation monitoring is taking place and 

would proceed for 30 years after the landfills are closed 458 to prove compliance with water quality 

standards and to prove the containment systems work hydraulically, as intended. 

Michigan DEQ states459 that Consumers Energy continues to study the groundwater arsenic issue and has 

their authorization to vent groundwater to Saginaw River/Bay. Based on continued quarterly sampling, 

both landfills are in compliance with the arsenic site-specific GSI criterion of 540 μg/L. The high arsenic 

 

456 The east portion of the containment area was expanded in 1971 and the perimeter dikes were raised to elevation 

590 feet IGLD85 (International Great Lakes Datum 1985). The purpose of raising the perimeter dike was to 

construct a clay perimeter dike that is keyed into the hydraulic confining glacial clay till layer located approximately 

20 to 25 feet below the current ground surface. This clay dike was designed to prevent any potentially contaminated 

groundwater from seeping through the dike into Saginaw Bay from the disposal facility. However, Consumers 

Energy later determined that this clay dike was not effectively keyed into a confining layer. In 2008, a soil-bentonite 

slurry wall was installed within the clay dike and keyed into the hydraulically confining glacial clay till layer. The 

liner’s permeability is 1 x 10-6cm/sec for the clay, and 1 x 10-8cm/sec for the bentonite. A portion of the perimeter 

dike, upstream of the fish barrier and NPDES monitoring point, did not have a slurry wall installed to provide a vent 

for water from the site to discharge (Dewberry and Davis, 2011; for a map of the slurry wall, see virtual page 359).

457 Michigan DEQ (2009a). However, the slurry wall to be installed at the Karn impoundment is no longer proposed 

due to slope instability of the site.

458 This includes monitoring of ash and leachate quality in the landfills; groundwater quality immediately under and 

outside the dike walls; hydrostatic levels to determine the future rates of leakage, to calculate flux; and groundwater 

quality where venting might reach surface water at the River and Bay. 

459 Michigan DEQ comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0191.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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level (997 μg/L) detected at Transect 5 during the Phase II study in 2005 has not been repeated since. 

Due to the ongoing site investigation, and the determination that the water under the impoundments is 

designated as groundwater not in an aquifer, the Michigan DNR has not listed this site as a proven 

damage case.460

Consumer Energy claims461 that both impoundments converted to dry-handling in 2009, and will be 

dewatered and ultimately closed as landfills. The Karn landfill is completing design fill elevations on the 

structural fill portion of the landfill prior to closure; the Weadock landfill will continue operating for 

some years. As a result of the conversion to dry handling and the dewatering of the impoundments, the 

area of contamination influence as mapped in the NRT 2005 study has significantly decreased (reduced 

head and dissipation of the groundwater mounds). 

Michigan DNR has recently claimed462 that under the revised “mixing zone” standards, and State 

revisions for boron and arsenic standards ‘based on new science’, the Karn/Weadock landfills are not 

discharging levels of contaminants that are above criteria meant to protect public health and aquatic life. 

ICF (2010) Rationale: Potential Damage. <There are no administrative rulings or court decisions 

associated with the site; however MDEQ and Consumer Energy are negotiating a consent decree to 

address landfill leakage. Groundwater exceedances of the primary EPA MCL for arsenic have been found 

on site. Arsenic was also found exceeding the primary EPA MCL in an offsite well in Lake Huron, 

however the State ruled that the exceedance did not clearly implicate the Karn and Weadock landfills or 

the CCR at the site as the source.>

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 #9. 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 #9. ICF, 10/2010, Appendix B.

Bay City News (2009): State says Saginaw Bay coal ash landfills are safe, residents disagree. Bay City 

News, 10/13/2009. Accessed Online November 2012.

http://www.mlive.com/news/bay-city/index.ssf/2009/10/state_says_saginaw_bay_coal_as.html

Human Health Risk Assessment Summary for the Consumers Energy Karn/Weadock Generating 

Complex Proposed Modifications (PTI Application # 341-07) January 30, 2009. Accessed Online 

November 2012.

http://www.deq.state.mi.us/aps/downloads/permits/PubNotice/341-07/341-

07%20Cumulative%20Risk%20Assessment.pdf

Michigan DEQ (2009a): DEQ Consumers Energy Karn Weadock Ground Water Monitoring. Accessed 

Online November 2012.

http://www.michigan.gov/documents/deq/GSI_MZ_Monitoring_298496_7.pdf

 

460 Michigan DNR comment to the docket: EPA-HQ-RCRA-2009-0640-6815.

461 Comment to the 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0212.

462 Bay City News (2009).
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

129

Michigan DEQ Info Sharing (2009): Michigan Department of Environmental Quality Information 

Sharing Meeting October 13, 2009. Accessed Online November 2012.

http://www.michigan.gov/documents/deq/OverviewCompHist_298495_7.pdf

Sierra Club (Undated): Coal Ash: Unregulated, Dirty, Dangerous, Toxic! The EPA considers new 

regulation on coal ash now! Accessed Online October 2012.

http://www.sierraclub.org/coal/mi/downloads/CoalAshFactsheetMI.pdf

Sierra Club (2010): Consumers Energy Hides Coal Ash Leaks, Puts People at Risk. FOIA request shows 

Consumers Energy violated state rules. July 21, 2010. Accessed Online October 2012.

http://michigan.sierraclub.org/news/docs/hides%20coal%20ash%20leaks.pdf

D E Karn 1 and 2 Solid Waste Disposal Area Operating License (2009): Michigan Department of 

Environmental Quality Waste and Hazardous Materials Division, October 15, 2009. Accessed Online 

November 2012.

http://www.michigan.gov/documents/deq/DNRE-WHMD-SW-DE_KARN_OpLICENSE_320051_7.pdf

JC Weadock Solid Waste Disposal Area Operating License (2009): Michigan Department of 

Environmental Quality Waste and Hazardous Materials Division, October 15, 2009. Accessed Online 

November 2012.

http://www.michigan.gov/documents/deq/DNRE-WHMD-SWCONSUMERS_JC_WEADOCK_OpLICENSE_320046_7.pdf

GZA GeoEnvironmental (2011): Final Report Round 7 Dam Assessment, Consumers Energy D. E. Karn 

Plant 1 & 2 Disposal Area, GZA GeoEnvironmental , Inc., June 30, 2011. Accessed Online December 

2013.

http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys2/ce-karn-final.pdf

Dewberry & Davis (2011): Coal Combustion Waste Impoundment Round 7 Dam Assessment Final 

Report, J. C. Weadock Fly Ash Dike, Consumers Energy, Bay County, Michigan, Dewberry & Davis, 

April 2011. Accessed Online December 2013.

http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys2/ce-weadock-final.pdf

Power Engineering (2011): Consumers Energy cancels clean coal power plant project. Power 

Engineering, December 2, 2011. Accessed Online August 2014.

http://www.power-eng.com/articles/2011/12/consumers-energy-cancels-cean-coal-power-plantproject.html

Power Engineering (2013): Consumers Energy receives approval to delay retiring coal fired units, Power 

Engineering, September 25, 2013. Accessed Online August 2014.

http://www.power-eng.com/articles/2013/09/consumers-energy-receives-approval-to-delay-retiring-coalfired-units.html

Mlive (2013): Bay County's Karn-Weadock power plant timeline: Operations began in 1940. 

Mlive/Michigan, October 31, 2013. Accessed Online August 2014.

http://www.mlive.com/news/bay-city/index.ssf/2013/10/karn-weadock_timeline_operatio.html
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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PTb25. Marquette Board of Light & Power Pine Hill Landfill, Negaunee Township, 

Michigan

Type: Type III Sanitary Landfill Receiving Fly Ash.

Background and Description: The Marquette Board of Light and Power’s Pine Hill Type III (LowHazard) sanitary landfill site,

463 located in Negaunee Township, Michigan, was used for the disposal of 

fly ash resulting from the burning of coal for the operation of the Shiras Steam Plant.464 Located in a 

valley with shallow groundwater, the landfill received ash from 1985-1995. Morgan Creek and wetlands 

were located in the landfill’s immediate vicinity. This site was submitted by the Michigan Department of 

Natural Resources and Environment (DNRE), together with seven other sites, to the CCR Proposed Rule 

docket.465

Impact: On-site groundwater exceedances of State health-based standards for boron and lithium, and 

high sodium levels. Also, groundwater discharges to Morgan Creek but there is no surface water impact 

associated with any constituent exceedances.466

Resolution: The Marquette Board of Light and Power was notified by the Michigan Department of 

Natural Resources (DENR) that the cell used at the landfill had resulted in degradations of the 

groundwater located under the landfill. The Michigan Department of Environmental Quality (DEQ) 

approved the Board’s feasibility study for the landfill. The Board subsequently submitted a Remedial 

Action Plan (RAP) for the site that was approved by the DEQ in February 1998.467

RAP (1998) restrictive covenant blocking new water wells or use of drinking water within aquifer or any 

aquifer within 0.5 miles of the site; landfill closed and covered in 1993-95. Post-closure monitoring was 

required for ten years.468

Basis for Consideration as a Potential Damage Case: On-site groundwater exceedances of State 

Health-Based standards for boron and lithium.

 

463 Permit No. 52-000031 (Michigan DEQ, 2000).

464 The Shiras Steam Plant is located at 400 East Hampton Lake St., Marquette, MI 49855. According to Marquette

Board of Light and Power (2012), the Shiras Steam Plant Has 92 MW of electric generating capacity including coalfired steam generation from three units: Unit 1: 28 MW (commissioned 1956), Unit 2: 20 MW (1971), and Unit 3: 

44 MW (1981). Boilers 1 and 2 are spreader stoker coal fired boilers, whereas Boiler 3 is a pulverized coal fired 

boiler. Annually the utility requires approximately 200,000 tons of coal for generation purposes which is received at 

the utility’s unloading dock in Marquette’s Lower Harbor. The Marquette Board of Light and Power is a municipal 

electric utility serving approximately 17,000 customers in the city of Marquette and all or parts of nine townships in 

Marquette County: Marquette, Negaunee, Ishpeming, West Branch, Richmond, Chocolay, Skandia, Sands and 

Forsyth. According to Michigan DEQ Air Quality Division (2013), Boilers #1 and #2 were upgraded in 1979 with 

the addition of individual baghouse dust collectors under Air Use Permit #345-78, and Boiler #3 is controlled by a 

lime slurry scrubber for flue gas desulfurization followed by a baghouse dust collector.

465 Michigan DNRE (2010).

466 Michigan DNRE (ibid).

467 Marquette Board of Light and Power (2012).

468 Earthjustice and Clean Water Action (no date).
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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References

Michigan DNRE (2010): Michigan Department of Natural Resources and Environment (DNRE) comment 

to the proposed CCR Rule docket: EPA-HQ-RCRA-2009-0640-6815, Attachment 5: Table of Michigan’s 

Proven Damage Cases. Accessed Online August 2014.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2009-0640-6815

Marquette Board of Light and Power (2012): Audited Financial Statements and Supplementary 

Information, Marquette, Marquette Board of Light and Power, Michigan, June 30, 2012. Accessed online 

August 2014.

http://www.michigan.gov/documents/treasury/527513MarquetteBoardofLightPower20130122_409157_7.

pdf

Marquette Board of Light and Power (2011): Marquette Board of Light and Power 4-12-11 MINUTES.

Accessed Online August 2014.

http://www.mqtcty.org/Government/Advisory/BLP/Minutes/2011/4-12-11MBLPBrd.pdf

Michigan DEQ (2000): Table 4.20a. Operating and Closed Waste Disposal Sites in the Lake Superior 

Basin--Michigan (p. 2 of 2). Michigan Department of Environmental Quality, Waste Management 

Division, GEM Center for Science and Environmental Outreach, Michigan Technological University, 

July 2000. Accessed Online August 2014.

http://cseo.mtu.edu/community/planning/FinalReport/Appendix3Tables/SIT4-20A.pdf

Marquette Board of Light and Power (2012). Accessed Online December 2013.

http://www.mblp.org/about.php

Michigan DEQ Air Quality Division (2013): Renewable Operating Permit, Staff Report MI-ROP-B1833-

2013, Marquette Board of Light and Power Shiras Steam Plant. Accessed Online August 2014.

http://www.deq.state.mi.us/aps/downloads/rop/pub_ntce/B1833/B1833%20Staff%20Report%2009-26-

13.PDF

Earthjustice and Clean Water Action (no date, apparently 2012): Fact Sheet: Coal Ash in Michigan. 

Earthjustice/Clean Water Action, 2012 (?). Accessed Online August 2014.

http://earthjustice.org/sites/default/files/mi-coal-ash-factsheet-0812.pdf

PTb26. We Energies469 Presque Isle Power Plant Landfill, Marquette, Michigan

Type: Type III (Low-Hazard) Offsite Industrial Landfill.

Background and Description: This site was submitted by the Michigan Department of Natural 

Resources and Environment (DNRE), together with seven other sites, to the CCR Proposed Rule 

docket.470 This Type III Industrial Waste Landfill, owned by WEPCO, served the Presque Isle Power 

 

469 We Energies is the mother company of Wisconsin Electric Power Company (WEPCO).

470 Michigan DNRE (2010).
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Plant.471 The landfill is located in Marquette Township, about one mile west of Partridge Bay and the 

shore of Lake Superior, 3.5 miles of the power plant, and about 2,500 feet north of the Lake Superior & 

Ishpeming railroad tracks. The surrounding properties are undeveloped forested areas. It consists of two 

closed units with a combined area of 52.7 acres,

472 and an active, 26.9-acre area.473 Only the active (LF 

#3) and the more recent of the two retired landfills (LF #2) are lined and have a leachate collection 

system: LF #2 has a compacted clay, whereas LF #3 has a double composite liner.474 The older, closed 

landfill (LF #1), which operated between 1979 and 1993 and is implicated in the impact to groundwater, 

had no liner nor a leachate collection system. There are 32 monitoring wells serving both the open and 

closed landfills.475 Groundwater quality has been monitored at the site since 1983.476 Long-term data are 

available for the period before the onset of groundwater impacts, as well as during and after groundwater 

remediation. There is also one unlined leachate collection pond.

As of 2003, some of the ash from units 1 through 6 was landfilled, while all of the ash from units 7 

through 9 was being sold for producing concrete. Bottom ash was sold for use as road-subgrade and 

building floor slab materials. Some fly ash from units 1 through 6 was being used as feedstock for 

Portland cement kiln. At that time, the landfill (LF #2) used to receive unmarketable ash from units 1 

through 6 and CCR from the City of Marquette power plant.477

 

471 The Presque Isle Power Plant, located at 2701 Lakeshore Blvd., Marquette, Michigan 49855, has a Nameplate 

Capacity of 625 MW. It comprises nine generation units (with year of commissioning in parenthesis): 25 MW 

(1955), 38 MW (1962), 54 MW (1964), 58 MW (1966), 90 MW (1974), 90 MW (1975), 90 MW (1978), 90 MW 

(1978), and 90 MW (1979). The Plant, owned by WEPCO since 1988, was originally developed by the Upper 

Peninsula Power Company, initially to primarily meet the needs of the Cleveland-Cliffs Iron Company. According 

to DOE/NETL (2003), the iron company used to require about 240 MW of electricity 24 hours per day to operate its 

iron ore mines about 12 miles west of Marquette in the Ishpeming-Negaunee area. 

Units 1 through 6 burn a mixture of approximately 90 percent bituminous Colorado coal blended with 

about 10 percent petroleum coke, while units 7 through 9 burn low-sulfur, subbituminous Powder River Basin coal. 

About 747,600 tons of bituminous coal are used annually, while about 988,100 tons of subbituminous coal are 

consumed per year. In 2003, the plant generated about 25,700 tons per year of bottom ash and 113,000 tons per year 

of fly ash.

In January 2003, the Plant was selected for a 39-months commercial-scale testing of the TOXECON, 

mercury-capture system, utilizing injection of activated carbon into the flue gas of generation units 7, 8, and 9. The 

total flow of once-through, noncontact cooling water required to operate all nine units of the power plant at full load 

is 156,000 gpm on average. This water is drawn from Lake Superior and returned to the Lake after passing through 

condensers. A minor source of water supply for the power plant is leachate collected from the ash landfill (LF #2, 

about 8 gpm). The ash landfill leachate is collected in underground storage tanks and trucked to the power plant for 

use in the closed cycle ash system. Water in the ash system is used to transport bottom ash to the ash handling 

facilities at the plant and also is mixed with both bottom and fly ash prior to disposal. Excess water from the closed 

cycle ash system is directed to the power plant’s wastewater treatment facility along with other plant wastewater.

472 LF#1 (cells A, B, and C) – closure certified Nov. 22, 1994; and LF#2 (cells 1-5) – started operating in 1994, and 

closure was certified Jan. 12, 2007.

473 LF #3, Cells 1-4, occupying a total of 26.9 acres, has a total capacity of 2,460,000 yd3

and an 18-year lifetime 

since coming online. Cells 1-2 (12.2 acre), were authorized for use by a previous license, issued May 2008; and 

Cells 3-4 (14.7 acre), are authorized for use both by the previous license (Facility # 397349, License #9353, issued 

April 2013), and by the current license (# 9380, issued April 3, 2014). For a map of the closed and active units, see 

page 6 in Michigan DEQ (2014).

474 DOE/NETL (ibid) and EPRI (2002).

475 Monitoring wells: LF #1 (cells A, B, C): 7; LF #2: 13; LF #3, cells 1-2 (active): 8; and LF #3, cells 3-4 (under 

initial development): 4.

476 See Fig. 2-6 in EPRI (2002) for monitoring well locations.

477 DOE/NETL (ibid).
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Coarse crystalline metamorphic rocks of granitic composition underlie both the power plant and the ash 

landfill (Morey et al, in DOE/NETL, ibid). The surface material under much of the power plant’s landfill 

site is glacial outwash sand and gravel. In other parts of the landfill site a thin layer of glacial till mantles 

the bedrock. Portions of landfill units 2 (LF #2) and 3 (LF #3) have been constructed by blasting into 

bedrock. 478 Soils formed in the glacial materials are generally highly permeable.

Groundwater is present at very shallow depths in the unconsolidated glacial deposits at the landfill site. 

Groundwater is also assumed to be present in interconnected fractures in the bedrock. However, because 

the rock matrix is essentially impermeable, the bedrock surface can be considered to form the base of the 

shallow groundwater system. Fracture flow is limited, as suggested by 1 to 12 gpm (5 to 65 m3/d) yields 

for residential water supply wells finished in the bedrock, compared to yields of greater than 100 gpm 

(550 m3/d) in wells finished in the unlithified sand and gravel. The vast majority of local groundwater 

flow occurs in the unlithified sands and gravels. This is a permeable formation with hydraulic 

conductivity values as high as 7.7 x 10-1cm/s.479 Landfill #1 is situated over a local groundwater divide, 

and as a result groundwater within the sand and gravel flows northeast and southeast from the landfill in a 

pattern dictated by the geometry of the bedrock. 480 Groundwater elevation data collected during the late 

1980s and early 1990s, prior to installation of the HDPE cap, from an observation well2 situated between 

Cell B and Cell C indicated that the water table elevation beneath the current landfill footprint was 

between 798 and 800 feet (243 and 244 m) AMSL. These elevations are well below the base of ash, 

which is about 840 feet (256 m) AMSL beneath Cell C, and 840 to 820 feet (250 m) AMSL beneath Cells 

A and B, indicating that all ash lies above the water table.481

Groundwater probably discharges to surface water in Compeau Creek to the north and Dead River to the 

south. The local groundwater resembles the local surface water in its natural chemical characteristics,

with low concentrations of dissolved solids. The well nearest the landfill site is about 0.5 mile to the 

east.482

Impact: Testing in 1989 indicated groundwater contamination associated with the landfill (LF #1). 

According to EPRI (2002), groundwater monitoring down-gradient from LF #1 detected levels of boron, 

chromium, molybdenum, selenium, sodium, and sulfate; except for chromium, concentration of all the 

constituents ultimately peaked to exceed state groundwater criteria483 before an engineering cap was 

placed over the landfill in the early 1990s.484 According to Michigan DNRE (2010), on-site groundwater 

exceedances of State health-based standards for boron and lithium, and high sodium levels.485

 

478 See Fig. 2-1 in EPRI (2002) for rock outcrops and layout of LFs #1 and #2. According to Bedrock Geology Map, 

Marquette Co. (No date), the landfill is sited in an ‘Archean Volcanics and Sedimentary’ Rocks area (no coverage of 

the Jacksonville Sandstone in this area). 

479 EPRI (ibid).

480 See Fig. 2-10 in EPRI (ibid). 

481 See Figures 2-7 through 2-9 in EPRI (ibid).

482 EPRI (2002) and DOE/NETL (2003).

483 sulfate concentration prior to remediation - a maximum of 690 mg/L in MW24 and MW25, exceeded the state 

criterion of 250 mg/L; boron concentrations - a maximum of 2.40 mg/L in MW13A, were greater than the state 

cleanup criteria of 0.5 mg/L; molybdenum concentrations - highest median of 0.62 mg/L in MW24, exceeded state 

industrial cleanup criteria of 0.1 mg/L; and selenium concentrations - a maximum of 0.057 mg/L in well MW13A 

exceeded the state criterion of 0.05 mg/L (EPRI, ibid, Tables A-1 through A-5). See Figs. 3-3 through 3-5 for 

contaminant level time series plots.

484 Final closure of LF #1was certified by Michigan DEQ on November 22, 1994.

485 However, according to Table 3-1 in EPRI (ibid), lithium was first sampled only in August 1996. 
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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Resolution: A Perpetual Care Fund Agreement (escrow account) with WEPCO was executed by MDEQ 

on March 31, 2008.486 In addition to studies (EA, hydrogeological, hydrogeological monitoring, and 

engineering), the following Consent Orders were issued: # 641-01-245-02-93, entered on March 5, 1993, 

and # 641-01-245-02-93-95A, entered on July 26, 1995. 

LF #1 was capped in 1993 and 1994 and subsequent testing has shown an improvement in groundwater 

quality: eight years after installing the HDPE cap, concentrations of boron, chromium, molybdenum, 

selenium, and sulfate have either decreased or are decreasing to levels lower than state cleanup criteria.487

In most cases, concentrations are at or near background levels. No additional monitoring wells have been 

impacted by the site since the HDPE cap was installed, suggesting that the plume is dissipating as it 

migrates and groundwater controls are not necessary. The cap was highly effective because of the 

landfill’s position well above the water table and the relatively high flow rates in the sand and gravel.488

The 1998 Remediation Action Plan (RAP) for landfill #1 also has surface water management systems in 

place. Restrictive covenant in place to restrict installation of water supply wells. The RAP monitoring was 

suspended in 2009 but some water testing occurs for the open, regulated landfill #3.

After having lost more than 85% of its total energy demand in Michigan when Cliffs Resources Inc., the 

operator of two iron ore mines and other customers have switched to another electric power provider, We 

Energies had planned to cut operations at the Presque Isle Power Plant starting in February 2014. But the 

transmission organization Midcontinent Independent System Operator (MISO), which oversees the area’s 

power grid denied the utility's request to suspend operations at the plant, saying the plant was needed in 

order to ensure grid reliability. We Energy requested MISO "to compensate the company for that 

continued operation." MISO will report the amount of money to be paid to We Energies -- and how much 

must be picked up by ratepayers -- in a filing with the Federal Energy Regulatory Commission 

(Milwaukee Wisconsin Journal Sentinel, 2013; 2013a; and Leader Telegram, 2013).

Basis for Consideration as a Potential Damage Case: On-site groundwater exceedances of State 

health-based standards for boron, lithium, molybdenum, selenium, and sulfate, and high sodium levels.

References

Michigan DNRE (2010): Michigan Department of Natural Resources and Environment (DNRE) comment 

to the proposed CCR Rule docket: EPA-HQ-RCRA-2009-0640-6815, Attachment 5: Table of Michigan’s 

Proven Damage Cases. Accessed Online August 2014.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2009-0640-6815

DOE/NETL (2003): Environmental Assessment: TOXECON Retrofit for Mercury and Multi-Pollutant 

Control, Presque Isle Power Plant, Marquette, Michigan. DOE/NETL, DOE/EA-1476, September 2003. 

Accessed Online August 2014.

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.netl.doe.gov%2FFile%2520Library%2FResearch%2FCoal%2Fmajor%2520de

monstrations%2Fccpi%2Ftoxecon%2FWiscElec_EA_Sep03.pdf&ei=bVjzU9fuI9HIsATUsoEI&usg=AF

 

486 According to Michigan DEQ (2014), the post-closure period for WEPCO LF#1 and LF#2 will not begin until 

LF#3 is certified closed, as long as the financial assurance for the three landfill units is combined.

487 See Figs. 3-6 through 3-9 in EPRI (ibid) for the spatial distribution of contaminant levels before and after 

installation of the HDPE cap.

488 EPRI (2002). The cap consisted of 6 inches of topsoil, 12 inches of a vegetative growth layer, 12 inches of a 

drainage layer, and a 60-mil HDPE (high-density polyethylene) barrier layer.
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QjCNGMT24VQfVXyHgjGynI2r5aEzS8ZA&sig2=rpTatRhIFvDLiBzcCx_sYA&bvm=bv.73231344,d.c

Wc

Michigan DEQ (2013): Solid Waste Disposal Area Operating License (License #9353, issued April 26,

2013), Michigan DEQ Office of Waste Management and Radiological Protection, Presque Isle Power 

Plant Ash LF, Type III Solid Waste Disposal Area. Accessed Online August 2014.

http://www.michigan.gov/documents/deq/DNRE-WHMD-SWWE_PRESQUE_ISLE_OpLicense_320215_7.pdf (No longer accessible).

Michigan DEQ (2014): Solid Waste Disposal Area Operating License (License #9380, issued April 3,

2014), Michigan DEQ Office of Waste Management and Radiological Protection, Presque Isle Power 

Plant Ash LF, Type III Solid Waste Disposal Area. Accessed Online October 2014.

http://www.michigan.gov/documents/deq/DNRE-WHMD-SWWE_PRESQUE_ISLE_OpLicense_320215_7.pdf

Bedrock Geology Map, Marquette Co. (No date). Accessed Online August 2014.

http://www.co.marquette.mi.us/departments/planning/docs/bedrockgeology.pdf

EPRI (2002): Evaluation of a Remedial Action at an Unlined Coal Ash Landfill: PI Site, EPRI, Palo Alto, 

CA, and We Energies, Milwaukee, WI: 2002. 1005262. Accessed Online August 2014.

http://www.epri.com/search/Pages/results.aspx?k=Evaluation+of+a+Remedial+Action+at+an+Unlined+C

oal+Ash+Landfill%3A+PI+Site&r=mptypecategory%3AAREBVGVjaG5pY2FsIFJlc3VsdHMObXB0eX

BlY2F0ZWdvcnkBAl4iAiIk,mptabresults%3AARABUmVzZWFyY2ggUmVzdWx0cwxtcHRhYnJlc3Vs

dHMBAl4iAiIk

Milwaukee Wisconsin Journal Sentinel (2013): We Energies to lose biggest customer, Mich. mines cite 

surge in rates, Milwaukee Wisconsin Journal sentinel, July 31, 2013. Accessed Online August 2014.

http://www.jsonline.com/blogs/business/217814321.html

Milwaukee Wisconsin Journal Sentinel (2013a): We Energies can't shut down Presque Isle power plant. 

Milwaukee Wisconsin Journal Sentinel, Oct. 21, 2013. Accessed Online August 2014.

http://www.jsonline.com/business/we-energies-cant-shut-down-presque-isle-power-plant-b99125069z1-

228701441.html

Leader Telegram (2013): Officials want Presque Isle plant to stay open, October 24, 2013. Accessed 

Online August 2014.

http://www.leadertelegram.com/news/daily_updates/article_8c6d2f12-3ca8-11e3-8ad8-

001a4bcf887a.html?TNNoMobile

PTb27. Muskegon County Offsite Fly Ash Monofill, Moorland Township, Michigan

Type: Type III Monofill Receiving Fly Ash.

Background and Description: This site was submitted by the Michigan Department of Natural 

Resources and Environment (DNRE), together with seven other sites, to the CCR Proposed Rule 

docket.489 The Muskegon County Type III fly ash monofill is one of five Type III coal ash sites in 

 

489 Michigan DNRE (2010).
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Michigan that were formerly licensed to accept solid waste but are now closed. All of these sites are 

known to be contaminated by the State.490 This unlined, 57 acres Monofill491 received ash primarily from 

the B.C. Cobb plant in Muskegon492 between 1980 and 2001. In 1998, its capacity was 2,664,000 cubic 

yards, and it received 90,000 cubic yard of fly ash per year.493

In the western part of Muskegon County the glacial till attains a thickness of over 200 feet; it is underlain 

by a lateral transition between the Mississippian Marshall Sandstone and the overlying Michigan 

Formation. The Michigan Formation is an interbedded sequence of shale, limestone, dolomite, gypsum or 

anhydrite, and discontinuous beds of siltstone and sandstone, forming a hydrologically confining 

lithologic unit. The composite thickness of permeable sandstones that form the Marshall aquifer typically 

ranges from 75 to 175 feet. The Marshall aquifer is freshwater bearing in areas where it is in direct 

hydraulic connection to Pleistocene glacial deposits.494

Muskegon County disposes of waste water by spray irrigating corn farmland on its waste-disposal site.495

The monofill’s area is confined by large irrigation circles deploying this irrigation method. A study 

conducted on irrigation Circle 26, about 3 miles NNE of the Muskegon County’s monofill site indicates 

that Circle 26496 is underlain by glacial lake and outwash deposits. The lake and outwash deposits consist 

of an upper layer of highly permeable fine to medium sand that is 5-6 m thick and a lower layer of silty 

sand interbedded with silty clay that is 10 m thick. Underlying the lower layer is silty clay till.497 Based on 

the statement that ‘The site is located on a soil and clay bottom,’ it is plausible that the Muskegon 

County’s Monofill is underlain by the cited silty clay till. 

 

490 Michigan DNRE (2010).

491 The monofill is located at 9366 Apple Avenue, Ravenna, Michigan, between Hall Drain (treated wastewater 

storage lagoon) to the north, Route 46 to the south, and South Swanson Road to the east. It borders on a Type II 

(Muskegon Waste Facility) landfill which is still active: http://www.trails.com/usgs-topo-hall-drain-canaltopographic-map-627642.html

492 According to Consumers Energy (2014), Consumer Energy’s B.C. Cobb Plant is a baseload facility with 320 

MW in generating capacity. It is located just over a mile from Lake Michigan on the shores of Muskegon Lake, 

where its waters meet the Muskegon River. The two coal units burn an 80 percent blend of low-sulfur western coal 

(from Wyoming and Montana) and 20 percent eastern coal. The plant consumes about 1 million tons of coal per 

year, about 640,000 tons of which are shipped annually to the plant via the Muskegon Lake port. Units 4 and 5 (160 

MW each) burn coal and began operating in 1956 and 1957, respectively. Units 1 and 2 (60 MW each) were first 

commissioned to burn coal in 1948, and Unit 3 (60 MW) - in 1950. All three units were retired in 1990 and then 

repowered to burn natural gas in 1999-2000. Currently, the three units are in layup until economic conditions 

warrant their utilization, which depends on the fluctuating price of natural gas. 

According to Grains Detroit Business (2014), Consumers Energy earlier announced plans to close and 

demolish the B.C. Cobb plant as well as coal-fired units at its J.R. Whiting facility near Luna Pier in Monroe County 

and the Karn/Weadock complex near Bay City on the Saginaw Bay. Consumers Energy plans to shut the units by 

April 2016. The ages of the plants, along with U.S. EPA requirements for additional pollution control equipment, 

prompted the decision to close these old facilities. In February 2014, Consumers Energy selected AMEC, with 

Michigan offices in Novi and Traverse City, to represent the company as the owner’s engineer for the 

decommissioning program for the planned retirement of the B.C. Cobb plant as well as the other operating units at 

the utility’s J.R. Whiting facility and the Karn/Weadock complex (Consumers Energy, 2014a).

493 Muskegon County (2000), virtual page 21 (volume based on assumption of 1 ton fly ash = 1 cubic yard). In the 

last year of the facility’s operation, 27,590 cubic yards of fly ash were landfilled (Michigan DEQ, 2002).

494 USGS (1996), narrative and Figures 2, 3, and A2.

495 http://cfpub.epa.gov/si/si_public_record_Report.cfm?dirEntryID=34639

496 See Fig. 1 in USGS (1981). The Muskegon County Monofill occupies the strip confined by Irrigation Circle 42 to 

the south and the Storage Lagoons (the Hall Drain) to the north. 

497 USGS (1981).
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The site is underlain by a complex dynamics of the groundwater system because of adjacent Type II 

landfill (permitted for the disposal of residential-, commercial-, industrial-, and C & D waste, as well as 

contaminated soils)498 also adds to inability to determine groundwater impact from coal ash landfill.

Impact: On-site groundwater exceedances of State Health Standards for boron and manganese,

499 as well 

as for lithium, sulfate, selenium, potassium and total dissolved solids (TDS). However, no drinking-water 

was impacted.

Resolution: Feasibility Study and Remediation Action Plan (RAP) since 1998 required groundwater 

interceptor trench, rapid infiltration and treatment. Leachate discharges into the Hall Drain, a treated 

wastewater storage lagoon, the water of which is used to spray-irrigate fields. The Black River, 

designated as a cold water stream, is not affected by the discharge from the Hall Drain.500

The landfill was closed and capped as part of a settlement to a class action suit brought by neighbors to 

the east on Moorland Road. The Landfill was certified closed in November 2001, and as a result there is a 

decline in the parameters of concern. DEQ Continues to monitor site groundwater and maintain the 

integrity of the capping geosynthetics and soil cover; continues to utilize natural attenuation of the 

impacted groundwater; and keeps monitoring the site and keeps up maintenance of the cover to prevent 

percolation of precipitation through the monofill and into the groundwater.501

Basis for Consideration as a Potential Damage Case: On-site groundwater exceedances of State 

Health standards for boron and manganese, as well as lithium, sulfate, selenium, potassium and total 

dissolved solids (TDS.)

References

Michigan DNRE (2010): Michigan Department of Natural Resources and Environment (DNRE) comment 

to the proposed CCR Rule docket: EPA-HQ-RCRA-2009-0640-6815, Attachment 5: Table of Michigan’s 

Proven Damage Cases. Accessed Online August 2014.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2009-0640-6815

Muskegon County (2000): 1998 Solid Waste Plan Update, Muskegon County Solid Waste Planning 

Committee. Submitted August 22, 2000 to Michigan department of Environmental Quality, Waste 

Management Division, Lansing, Michigan. Accessed Online August 2014.

http://www.michigan.gov/documents/deq/DEQ-OWMRP-SW-Muskegon_424975_7.pdf 

Muskegon County (2012): Muskegon County Recommended 2013 Program Budget, Fly Ash Program 

fund 5711. July 24, 2012. Accessed Online August 2014. 

www.co.muskegon.mi.us/budget/program_p2013.pdf

Michigan DEQ (2002); Report of solid Waste Landfilled in Michigan, October 1, 2000 – September 30, 

2001. Michigan department of Environmental Quality, Waste Management Division. February 22, 2002.

Accessed Online August 2014.

2001 - State of Michigan

 

498 Muskegon County (ibid), virtual page 20.

499 Michigan DNRE (2010).

500 Michigan DEQ (2003).

501 Muskegon County (2012), virtual page 427.
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Consumer Energy (2014): B.C. Cobb Generating Plant. Accessed Online August 2014.

http://www.consumersenergy.com/content.aspx?id=1334

Consumers Energy (2014a): Consumers Energy Awards Contract to Decommission Oldest Coal Plants. 

Consumers Energy News Release, February 13, 2014. Accessed Online August 2014.

http://www.consumersenergy.com/News.aspx?id=7038&year=2014

Grains Detroit Business (2014): Consumers Energy working on new use for site of closed plant in 

Muskegon. Grains Detroit Business, April 23, 2014. Accessed Online August 2014.

http://www.crainsdetroit.com/article/20140423/NEWS01/140429941/consumers-energy-working-onnew-use-for-site-of-closed-plant-in#

Michigan DEQ (2003): Total Maximum Daily Load for Biota for Black Creek Muskegon County, 

Michigan. Michigan Department of Environmental Quality Water Division, August 2003. Accessed 

Online August 2014.

Black Creek - State of Michigan

USGS (1981): Hydraulic characteristics of an underdrained irrigation circle, Muskegon County, 

wastewater disposal system, Michigan. 1981, McDonald, M. G., United States Geological Survey Water 

Supply Paper: 2081. Accessed Online August 2014.

http://pubs.er.usgs.gov/publication/wsp2081

USGS (1996): Hydrogeologic Framework of Mississippian Rocks in the Central Lower Peninsula of 

Michigan. D.B. Westjohn and T.L. Weaver, U.S. Geological Survey Water-Resources Investigations 

Report 94-4246. Lansing, Michigan, 1996. Accessed Online August 2014.

http://.www.pubs.usgs.gov/wri/1994/4246/report.pdf

PTb28. John Warden Ash Site, L’Anse, Baraga County, Michigan

 

Type: Ash Landfill (Mixed with Municipal Solid Waste or On Top of a MSW Landfill)

Brief Description: This site was submitted by the Michigan Department of Natural Resources and 

Environment (DNRE), together with seven other sites, to the CCR Proposed Rule docket.502 According to

Michigan DNRE (2010), this unlined, Type III industrial (Low Hazard) landfill, formerly owned by 

Upper Peninsula Power Co. (UPPCO),503 received ash from the John H. Warden Generating Station 

 

502 Michigan DNRE (2010).

503 Facility ID: 07-000002: Michigan DEQ (2000). The site is apparently located at the distal section and south of 

Old Dump Road, south of the town of L’Anse. 
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between 1974 and 1993.504 It is one of five Type III sites in Michigan505 that were formerly licensed to 

accept solid waste but are now closed. Located three-quarters of a mile from Keweenaw Bay on Lake 

Superior, the site is adjacent to Falls River, a stream that discharges directly into Keweenaw Bay. The 

18.4 acres site has wet municipal solid waste underneath the ash.506

According to Michigan DNR (1973), the landfill is located on the Keweenaw Moraine, which was 

deposited as a part of the terminal margin of the Keweenaw Bay Lobe and roughly follows the outline of 

Keweenaw Bay. Much of the northwestern part of the moraine, especially southwest of L’Anse, is waterwashed. Some of the till in this area could be classified as ground moraine.

The metamorphic rocks of the Marquette Range Supergroup yield water to a few wells near L'Anse. 

Water is apparently obtained from openings along fractures near the top of the bedrock. Reported yields 

of wells in these rocks will yield smaller amounts. Water from most wells in the Marquette Range 

Supergroup is moderately hard to very hard but is generally suitable for domestic use. Whereas the 

Village of L'Anse obtains its water supply from Lake Superior, about 3 miles south of L'Anse a resort 

complex consisting of a store, service station, 15 cabins, and the owner's residence obtains water from a 

well 45 feet deep in bedrock.

Impact: Stormwater discharge into streams and leachate percolation has caused plume of contamination 

in local groundwater, a source for the Falls River. The constituents of concern were boron and lithium, 

both with on-site exceedances. Surface water was also impacted, but not drinking water.

Resolution: A consent order was issued in 1993: remediation investigation suggested no active 

groundwater extraction. Ash redistribution and removal, grading, and capping w/ synthetic membrane, 

surface water drainage, and remedial leachate collection.

The closure of the ash disposal site at the John H. Warden Station was completed in 1994. A Closure 

Certification Report was submitted to the Michigan Department of Natural Resources (MDNR) and was 

approved in January, 1995. The Closure Certification includes an agreement with the MDNR for the 

 

504 The Warden Plant is now owned by L’Anse Warden Electric Company, LLC (LWEC), located in L’Anse, 

Michigan, a subsidiary of Traxys North America, LLC biomass-fueled electric plant, which went into commercial 

operation in late 2009. Upper Peninsula Power Company (UPPCO) is a subsidiary of Upper Peninsula Energy 

Corporation (UPEN). It was incorporated in 1947 under the laws of the State of Michigan as an electric utility 

engaged in the generation, purchase, transmission, distribution and sale of electric energy in the Upper Peninsula of 

Michigan. UPPCO was the original owner of the John H. Warden Generating Station, which has been in operation 

since 1959. During 1993 the Warden Station was upgraded to have natural gas burning capability in addition to coal. 

Effective January 1, 1994, the station was taken out of service and placed in service lay-up status (mothballed): 

http://google.brand.edgar-online.com/EFX_dll/EDGARpro.dll?FetchFilingHtmlSection1?SectionID=245507-8687-

50845&SessionID=47tTFCxxrrzsN27. In 2010, the Station was granted $11.69 Million to replace the original 60 

MW plant by a 20 MW (17.7 MW net) boiler (#1) fueled by biomass or fossil-fuel: Biomass Accountability Project

(2011). In addition to providing renewable energy for Michigan’s economy, the biomass plant utilized paper mill 

waste from a nearby mill as part of its fuel input (Traxys, no date).

505 The others are B.C. Cobb, Muskegon; Muskegon County Landfill, Muskegon; North Lansing Landfill, Lansing; 

and Pine Hill Landfill, Marquette.

506 Note that co-disposal of municipal-, industrial-, and special waste is rather common in Michigan. For instance, 

according to Michigan DEQ (2002), Baraga County has requested Michigan DEQ to export its solid waste to the 

Wood Island Landfill in Wetmore, Ontonagon County. This Type II Sanitary Landfill was licensed to accept 

residential, commercial, industrial, and construction & demolition waste, as well as contaminated soils and special 

waste. The latter included foundry sands, fly ash and auto shredded fluff.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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Company to monitor groundwater surrounding the ash disposal site for a 30-year period. In December, 

1994, an estimated liability and regulatory asset of $841,000 was recorded for such future costs. 

The Michigan Department of Environmental Quality (MDEQ - Formally included in the MDNR) also 

advised UPPCO in early 1995 that recent water samples from the site indicated elevated levels of boron 

and lithium. The MDEQ determined that UPPCO's Feasibility Study submitted in 1993 did not address 

the recent issues and was rejected. Supplemental Remedial Investigations were performed in 1995 and the 

results were submitted to the MDEQ in February 1996. UPPCO also requested and was granted an 

amendment to the Consent Order to allow for modification of the Feasibility Study and redefining a new 

timetable for submission of the Remedial Action Plan. An amended Remedial Action Plan was submitted 

to the MDEQ in July, 1997. As of December 31, 1997 the MDEQ had not completed their review of the 

plan.507

Basis for Consideration as a Potential Damage Case: On-site exceedance of State health standards 

for boron and lithium.

References:

Michigan DNRE (2010): Michigan Department of Natural Resources and Environment (DNRE) comment 

to the proposed CCR Rule docket: EPA-HQ-RCRA-2009-0640-6815, Attachment 5: Table of Michigan’s 

Proven Damage Cases. Accessed Online August 2014.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2009-0640-6815

Michigan DEQ (2000): Michigan Department of Environmental Quality, Waste Management Division, 

GEM Center for Science and Environmental Outreach, Michigan Technological University, July 2000, 

Table 4.20a. Operating and Closed Waste Disposal Sites in the Lake Superior Basin--Michigan (p. 2 of 

2). Accessed Online August 2014.

http://cseo.mtu.edu/community/planning/FinalReport/Appendix3Tables/SIT4-20A.pdf

Upper Peninsula Power Company (1998): 10K Filing, March 26, 1998, Part I. Accessed Online August 

2014.

http://google.brand.edgaronline.com/EFX_dll/EDGARpro.dll?FetchFilingHtmlSection1?SectionID=245507-8687-

50845&SessionID=47tTFCxxrrzsN27

Michigan DEQ (2002): Baraga County Solid Waste Management Plan. Michigan Department of 

Environmental Quality, Waste Management Division, Feb. 26, 2002. Accessed Online August 2014.

Baraga - State of Michigan

Traxys (No date): L'Anse Warden Electric Company, LLC. Accessed Online August 2014.

http://www.whitepineep.com/Lanse.html

Michigan DNR (1973): Water Investigation 11, Ground Water and Geology of Baraga County, Michigan. 

State Michigan Department of Natural Resources Geological Survey Division, C. J. Doonan, and J. R. 

Byerlay, Lansing, Michigan 1973. Prepared in cooperation with the Water Resources Division of the 

Geological Survey, United States Department of the Interior. Accessed Online August 2014.

http://www.michigan.gov/documents/deq/GIMDL-WI11_216293_7.PDF

 

507 Upper Peninsula Power Company (1998).
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Biomass Accountability Project (2011): Biomass Electricity: Clean Energy Subsidies for a Dirty Industry 

- The case for ending taxpayer and ratepayer subsidies that harm public health, environment, climate, 

and forests. Produced by the Biomass Accountability Project, Margaret Sheehan, Esq., Samantha Chirillo, 

Josh Schlossberg, Dr. William Sammons, Matt Leonard, Energy Justice Network, June 2011. Accessed 

Online August 2011.

Biomass Electricity in the - No Biomass Burning

PTb29. Consumer Energy B.C. Cobb Landfill, Muskegon County, Michigan

Type: Ash Surface Impoundment

Brief Description: This site was submitted by the Michigan Department of Natural Resources and 

Environment (DNRE), together with seven other sites, to the CCR Proposed Rule docket.508 According to 

Michigan DNRE (2010), this unlined, Type III industrial (Low Hazard) landfill received ash from the 

B.C. Cobb Plant in a surface impoundment from 1970-1982. The site is one of five Type III sites in 

Michigan509 that were formerly licensed to accept solid waste but are now closed.510 There are three 

monitoring wells at the site.

The B.C. Cobb Plant511 is located in the southwest portion of the 68 acres site (area 4 and 4A) beyond the 

right of way of Highway M-l20, which borders the site on the west. Directly east of the site are the CSX 

Railroad right of way and the now closed City of Muskegon Landfill. The landfill has a dyke of bottom 

ash built along the channel of the river and nearby marshes. The site is directly south of the North Branch 

of the Muskegon River, adjacent to marshes and a Veterans Memorial Park Pond.

Impact: According to Michigan DNRE (2010), on-site exceedances in groundwater for boron and 

lithium (drinking water not affected).512 However, the Remedial Action Plan (RAP) cites also manganese, 

sulfate, and ammonia as exceeding drinking water criteria.

A “split sample” taken by Michigan’s Department of Environmental Quality for two new parameters of 

interest, boron and lithium, indicated that both parameters exceeded the Final Acute Value (FAV) for the 

protection of aquatic life in effect at the time. These criteria were conservative due to the lack of data on 

 

508 Michigan DNRE (2010).

509 The others are John Warden Ash Site, L’Anse, Baraga County; Muskegon County Landfill, Muskegon; North 

Lansing Landfill, Lansing; and Pine Hill Landfill, Marquette.

510 Whereas the B.C. Cobb plant’s Regulated Type III landfill was closed, the site still accepts waste in their ten 

unregulated “contained waste” storage ponds.

511 For information on Consumer’s Energy-owned B. C. Cobb generating plant in Muskegon, see footnote in the 

module titled Muskegon County Offsite Fly Ash Monofill, Moorland Township, Michigan.

Early in December 2011, Consumers Energy announced that in response to existing and pending federal 

and state environmental regulations and ongoing market conditions, the company decided to suspend in 2015 the of 

operation of the two coal-fueled units at the 320 MW B.C. Cobb Generating Plant, in addition to suspending five 

additional smaller units elsewhere in Michigan (a total capacity of 950 MW; Power Engineering, 2011). Then, in 

late September, 2013, Consumers Energy received approval to delay the retirement of the two coal-fueled units at 

B.C. Cobb Generating Plant because of increased power demand in the state and concerns about power supply 

reliability. The approval gives Consumers the option of continuing operation at the B.C. Cobb Generating Plant until 

April 2016 (Power Engineering, 2013).

512 Boron and/or lithium have been found also in surface water, but road and dyke built from coal ash could be the 

source of the surface water contamination.
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aquatic toxicity for these parameters at the time, and the highest concentrations of boron and lithium 

monitored are well-below today’s FAVs. Nevertheless, at the time, these concentrations in the venting 

groundwater required response and remedial action.

Resolution: Proposed Consent Order, Remedial Investigation and Feasibility Study were followed by a 

Remedial Action Plan (RAP). According to Consumer’s Energy,513 the remedial action consisted of:

• The construction (2001) of a bentonite slurry wall around the entire 63 acre surface impoundment, 

keying to the clay below up to a depth of approximately 90 feet

• The use of water-conditioned, self-cementing western low sulfur fly ash compacted to a structural 

specification to create a low permeability cap over the landfill. This cap also created the minimal landfill 

slopes specified for closure and formed the select layer for the placement of a standard final cover 

consisting of a flexible membrane liner (FML) and 30 inches of soil and topsoil constructed and placed 

according to a QA/QC program.

• The final closure of 63 acres, which was accomplished in six phases over six years (2001 through 2007).

• Post-closure care for thirty years once final closure was accepted by the MDEQ (February 27, 2008) 

monitored through an ongoing groundwater monitoring program.514 Operational monitoring and post 

closure monitoring indicated compliance with monitoring parameters, including ten “metals” associated 

with CCRs, such as arsenic and selenium prior to venting to surface water in the adjacent Muskegon 

River. There are restriction on new drinking water wells.

After the site was closed by the state in 1984 with the standard earthen final cover required at the time, it 

was covered with sand, vegetated and is now a wildlife area. Consumers Energy is seeking to turn it into a 

soccer field and recreation area.

Basis for Consideration as a Potential Damage Case: On-site exceedance of State health standards 

for boron and lithium.

References

Michigan DNRE (2010): Michigan Department of Natural Resources and Environment (DNRE) comment 

to the proposed CCR Rule docket: EPA-HQ-RCRA-2009-0640-6815, Attachment 5: Table of Michigan’s 

Proven Damage Cases. Accessed Online August 2014.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2009-0640-6815

Power Engineering (2011): Consumers Energy cancels clean coal power plant project. Power 

Engineering, December 2, 2011. Accessed Online August 2014.

http://www.power-eng.com/articles/2011/12/consumers-energy-cancels-cean-coal-power-plantproject.html

Power Engineering (2013): Consumers Energy receives approval to delay retiring coal fired units, Power 

Engineering, September 25, 2013. Accessed Online August 2014.

http://www.power-eng.com/articles/2013/09/consumers-energy-receives-approval-to-delay-retiring-coalfired-units.html

 

513 Consumer Energy Company comment to the August 2013 NODA docket: EPA-HQ-RCRA-2012-0028-0068, and 

Attachment 2: Guidelines for Area 4 and 4A Inspection, Operation and Monitoring. Consumer Energy Corporation, 

B.C. Cobb Generating Facility, Muskegon, Michigan, May 2005 (Rev 1). Prepared by STS Consultants, Ltd.:

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2012-0028-0068.

514 Comprising six wells (MH-1 through MH-6) and 14 perimeter piezometers.
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PTb30. Consumers Energy J.H. Campbell, West Olive, Port Sheldon Township, Ottawa 

County, Michigan

Type: Ash Surface Impoundment

Brief Description: This site was submitted by the Michigan Department of Natural Resources and 

Environment (DNRE), together with seven other sites, to the CCR Proposed Rule docket.515 According to 

Michigan DNRE (2010), this unlined, 138 acre, Type III ‘landfills’ received ash from the Campbell 

Plant516 in a surface impoundment from 1962-1998. The site is one of five Type III sites in Michigan517

that were formerly licensed to accept solid waste but are now closed.518 There are forty monitoring wells 

at the nearby Campbell plant.

Fly ash disposal ponds are located adjacent to the lower reach of the Pigeon River, and the effluent from the ash 

ponds is discharged into the eastern end of Pigeon Lake. Pigeon River forms Pigeon Lake, a small estuary, 

where it enters Lake Michigan.

Impact: Groundwater: On-site exceedances in groundwater for antimony, boron, lithium, and selenium. 

Surface water also impacted (release into Pigeon River), but not drinking water. According to 

EarthJustice (2012?), groundwater monitoring data obtained through a Freedom of Information Act 

request show a history of exceedances of state and/or federal standards for pH, antimony, boron, 

cadmium, chromium, iron, lead, selenium, vanadium, aluminum, nickel, thallium, manganese, and zinc.

Surface water:519 The concentrations of aqueous selenium in the effluent from the Campbell Plant ash 

pond to Pigeon River, and selenium concentrations in springs and seeps near the ash ponds, exceed the 

water quality criterion for protection of aquatic life. Selenium concentrations in fish from the lower 

Pigeon River and Pigeon Lake, in the vicinity of the fly ash disposal ponds, were significantly greater 

than selenium concentrations at the up-stream Pigeon River site and were greater than published 

background selenium concentrations in fish in the Great Lakes region. Selenium concentrations in fish in 

the lower Pigeon River and Pigeon Lake do not exceed concentrations associated with toxic effects on 

sensitive fishes in controlled field and laboratory studies.

Selenium concentration in some species of fish from the lower Pigeon River and Pigeon Lake exceed 

dietary lowest observable adverse effect concentrations (LOAECs) associated with toxic effects in 

 

515 Michigan DNRE (2010).

516 According to Consumer Energy (2014), the Consumer Energy Campbell Station (17000 Croswell St., West

Olive, Michigan 49460) has a generating capacity of 1,450 MW. It is located on a 2,000-acre site along the Lake 

Michigan shoreline next to Pigeon Lake along the Lake Michigan shoreline, about 10 miles south of the city of 

Grand Haven. Units 1 (260 MW) and 2 (360 MW) began operating in 1962 and 1967, respectively, and Unit 3 (830 

MW) - in 1980. Campbell Units 1 and 3 burn 100 percent western coal. Campbell Unit 2 burns a blend of eastern 

and low-sulfur western coal. Western coal makes its way from Wyoming and Montana, while eastern coal arrives 

from a variety of states. The complex consumes about 6 million tons of coal per year, and the plant produces about 

208,000 tons ash/year.

517 The others are John Warden Ash Site, L’Anse, Baraga County; Muskegon County Landfill, Muskegon; North 

Lansing Landfill, Lansing; and Pine Hill Landfill, Marquette.

518 According to Clear Water Fund (2013), this site consists of several “cells” the last of which were closed in 2012. 

Currently, the site comprises five ponds (one of which is retired) and seven landfills. The current, active landfill has 

a double, synthetic liner and a leachate collection system.

519 Besser et al., (1996).
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wildlife and laboratory animals. However, human consumption of moderate quantities of fish from 

Pigeon River and Pigeon Lake should not result in excessive selenium intake.

Resolution: There is no consent order. RAP (Cells 1-7); RAP (Cells A-K impoundment, south of cells 1-

7): restrictive deed covenant. Groundwater extraction (can be suspended if criteria are met), mixing zone 

criteria: boron, lithium, selenium.520

According to Michigan DEQ (2013), the following cells: A, B, D, E, F, G-1, G-2, H, J, and K have final 

closure certified pursuant to the Consumer’s Energy RAP presented on August 9, 1999, and last revised 

on January 31, 2008. The closed units encompass 142 acres of the site’s total 410 acres.521

Basis for Consideration as a Potential Damage Case: On-site groundwater exceedance of State 

health standards for boron, lithium, antimony, and selenium and release of same to surface water.

References 

Michigan DNRE (2010): Michigan Department of Natural Resources and Environment (DNRE) comment 

to the proposed CCR Rule docket: EPA-HQ-RCRA-2009-0640-6815, Attachment 5: Table of Michigan’s 

Proven Damage Cases. Accessed Online August 2014.

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2009-0640-6815

Besser et al., (1996): Selenium Accumulation and Hazards in a Fish Community Affected by Coal Fly 

Ash Effluent. Besser J. M., J. P. Giesy, R. W. Brown, J. M. Buell, and G. A. Dawson, Ecotoxicology & 

Environmental Safety 35, 7-15 (1996). Accessed Online August 2014.

Selenium Bioaccumulation and Hazards in a Fish

EarthJustice (2012?): Fact Sheet: Coal Ash in Michigan. Earthjustice/Clean Water Action, 2012 (?). 

Accessed Online August 2014. 

http://earthjustice.org/sites/default/files/mi-coal-ash-factsheet-0812.pdf

Michigan DEQ (2013): Solid Waste Disposal Area Operating License, Michigan DEQ Office of Waste 

Management and Radiological Protection, JH Campbell LF, Type III Solid Waste Disposal Area, August 

26, 2010. Accessed Online August 2014.

http://www.michigan.gov/documents/deq/DNRE-ERMD-SWJH_CAMPBELL_OpLICENSE_329950_7.pdf

Consumer Energy (2014): J.H. Campbell Generating Complex. Accessed Online August 2014.

http://www.consumersenergy.com/content.aspx?id=1332

 

520 Other issues include ‘leaking leachate collection; tear in liner; coal ash stockpiled outside of ponds for future 

reuse; overspray of leachate for dust suppression; brine that is high in boron and selenium is still applied to road; 

Sluice water was thought to be source of contamination and coal ash still disposed in an area that has a double 

synthetic liner.’

521 For a December 2002 site map, see Attachment A in Michigan DEQ (2013).
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PTb31. Sheldon Station, Nebraska Public Power District, Hallam, Lancaster County, 

Nebraska

Type: Landfill.

Background and Description: Sheldon Station,522 located 17 miles south and five miles west of 

Lincoln and one mile north of Hallam, Southeast Nebraska, has been a disposal site of coal combustion 

residual (CCR) from the Nebraska Public Power District (NPPD)523 since the early 1990s. After nine 

years of disposal, the landfill was closed in 1999 and is now in a post-closure groundwater monitoring 

phase. There are other active landfills onsite; however, these were not assessed in EIP (2010a).524 The 

landfill -- Ash Pit #3 -- is underlain by clay (but has no engineered clay liner)525 and has a total capacity 

of 350,000 cubic yards. There is no mention of surface water nearby. Groundwater has been evaluated 

onsite since 1999; however, no offsite assessment or monitoring has been required. 

Coal Ash Pit #3 sits in glacial drift hills in the Salt Creek drainage basin which flows to the Platte River. 

The upper 100 to 150 feet of the glacial till sediments are designated as a glacial till aquifer and are 

comprised of a mixture of sand, silt, and clay. Perched water has been encountered on the plant property 

at depths of 8 to 24 feet below ground surface in the till. The upper portions of the glacial till aquifer are 

directly beneath the base of the landfill, with the distance from the base of the ash to the ground water 

table being less than 25 feet throughout most of the landfill area. The regional (Dakota) aquifer526

underlies the shallow, glacial till aquifer, and is located between 100 and 150 feet below the ground 

surface at the site. For preliminary results of the hydraulic properties of the till sediments and their 

perched groundwater around the entombed nuclear reactor based on groundwater investigation and twoyears of monitoring (1996-1997), see DOE (1998).

Impact and Damage Claims: EIP (2010a) indicates that levels of selenium exceeded the primary EPA 

Maximum Contaminant Level (MCL) in onsite groundwater. Additionally, sulfate exceeded the 

 

522 Sheldon Station, with generation capacity of 225 MW, comprises two units that came on line in 1961 and 1965. It 

uses low-sulfur sub-bituminous coal from the Powder River Basin. The plant’s water supply comes from its own 

deep wells. Construction of Sheldon Station began in 1958--first as a combined nuclear and conventional facility. It 

was the pioneer sodium graphite nuclear power plant in the nation and an experimental nuclear power plant for the 

Atomic Energy Commission. The nuclear portion of the plant became operative in 1963. The 84-MW reactor was 

shut down in 1964 following the discovery of a design flaw. Those portions of the nuclear plant’s equipment that 

could not be shipped to other nuclear plants for reuse were buried within mammoth "burial vaults" of concrete and 

then the "leftovers," including the reactor core, were sealed underground, in an institutionally-protected and 

groundwater monitored area next to the current power plant. Semi-annual surveillance and monitoring by the federal 

Energy Department under an agreement with the Nebraska Department of Health will continue until 2090, including 

monitoring wells around the entombed reactor for groundwater conditions and radiological contaminants:

http://www.nppd.com/assets/sheldon_brochure.pdf, http://www.neo.ne.gov/winter97/win97_12.htm, and 

http://journalstar.com/news/local/article_9b9c7795-0561-5731-84f2-5dcce9153a18.html.

523 NPPD is a public corporation and political subdivision of the state of Nebraska.

524 Ash Pit #4, the monitoring data of which was not reviewed by EIP (2010a), has a compacted clay liner and a 

leachate collection system.

525 Nebraska Department of Environmental Quality Comment to the October 2011 NODA docket: EPA-HQ-RCRA2011-0392-0217. NDEQ states that this site was constructed in 1989, prior to promulgation of the regulations that 

now apply to coal ash landfills. The substantial new requirements for fossil fuel combustion ash (FCCA) landfills,

including liner requirement, were adopted in 1993. For instance, the currently operating landfill, Ash Pit #4, was 

designed to the newer regulatory standards, with a compacted clay liner, a leachate collection system, and an 

evaporation pond.

526 Gosselin et al., (2001) and Gosselin et al., (2003).
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secondary EPA MCL (SMCL) in onsite groundwater. From 2002 onward, the two down-gradient 

monitoring wells for Ash Pit #3 have detected steadily rising levels of selenium (up to 0.073 mg/L) and 

sulfate (over 350 mg/L). The full extent of the contamination is unknown because these are the only two 

down-gradient wells for the coal ash landfill.

According to EIP (2010a), both down-gradient monitoring wells have shown increases over time of 

typical CCR contaminants, such as selenium in MW-3 and sulfates in MW-4. In MW-3, selenium 

concentrations have followed a steadily increasing trend from 2002 to 2009. Selenium concentrations in 

MW-3 have increased from concentrations as low as 0.014 mg/L in 2001 to as high as 0.0728 mg/L in 

2006, exceeding the MCL of 0.050 mg/L. Sulfate levels in MW-4 have steadily increased over time, 

rising from 50 mg/L in 2001 to a high of 381 mg/L in 2007, surpassing the Secondary MCL (SMCL) of 

250 mg/L. According to EIP (2010a), NPPD argues that the selenium levels are from naturally occurring 

sources since the selenium levels in laboratory coal ash leachate tests were an order of magnitude less 

than those found in onsite groundwater.

EIP (2010a) claims that water quality in “up-gradient” well MW-1 also appears to be heavily influenced 

with both chloride and sulfate levels showing steadily increasing patterns in the wells. NPPD blames this 

increase on cooling water discharge to a wetlands area up-gradient of the well. However, the closeness of 

MW-1 to the edge of the landfill where elevated groundwater levels beneath the landfill, as a result of 

mounding, result in a localized flow of groundwater toward the well is a more likely source of the 

chloride and sulfate. 

Nebraska Department of Environmental Quality (NDEQ)527 concurs that the information in EIP (2010a) 

regarding the fact that selenium and sulfate have been detected at levels exceeding MCLs in some of the 

monitoring wells at the site is accurate. However, NDEQ states that it is not conclusive that the landfill is 

the source of those elevated levels. Selenium and sulfate exist as naturally occurring minerals throughout 

the region: both have been detected in wells down- and up-gradient of Ash Pit #3, as well as in down- and 

up-gradient at the currently operating landfill, Ash Pit #4. In December 2010, additional wells were 

installed in the down-gradient direction from the landfill.528 The facility will conduct six semi-annual 

sampling events of all groundwater monitoring wells around the facility and perform statistical analysis of 

these results. In evaluation of the site, the natural occurrence of both substances is being considered, as 

well as the possibility of a localized discharge of cooling tower water used for fire suppression or similar 

activity involving power plant operations.

Concerning the EIP (2010a)-identified irrigation-well within one mile of the landfill, NDEQ claims529 that 

that irrigation well draws water from the deeper regional (‘Dakota’) aquifer, with the upper and lower 

aquifers being separated by a 50- to 100 feet thick, low permeability clay layer. Ash Pit #3 was 

constructed above a shallow, glacial till aquifer. The till is underlain by a high-density clay layer that acts 

as a protective barrier above the lower regional aquifer which is the zone used for water wells. The 

elevated groundwater monitoring results are from the low-yield uppermost aquifer zone and since it is not 

a source of drinking or irrigation water, it is currently not a public health threat.

Finally, NDEQ states that NPPD is voluntarily conducting additional groundwater investigation under 

NDEQ’s guidance. The highest levels of selenium and sulfate at Ash Pit #3 were 0.073 mg/L (MCL: 

0.05) and 381.0 mg/L (SMCL: 250), respectively. NDEQ contends that unless those levels increase 

 

527 EPA-HQ-RCRA-2009-0640-7533.

528 Nebraska Department of Environmental Quality Comment to the October 2011 NODA docket: EPA-HQ-RCRA2011-0392-0217.

529 EPA-HQ-RCRA-2009-0640-7533.
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dramatically, the likely remedial action for this site would be continued groundwater monitoring and/or 

restricted groundwater use.

Evaluation against Proven Damage Criteria530

Resolution: After closure of the landfill in 1999, NDEQ required groundwater monitoring for ten years. 

In 2009, NDEQ extended the post-closure groundwater monitoring period through 2014 due to evidence 

of contamination and requested that additional wells be installed to further delineate the plume.

NDEQ claims531 that the information obtained to date suggests that additional investigation is warranted 

at Ash Pit #3. In December 2010, additional wells were installed in the down gradient direction from the 

landfill. The facility will conduct six semi-annual sampling events of all groundwater monitoring wells 

around the facility and perform statistical analysis of these results.

USWAG claims that this Site does not meet the criteria for a damage case.532

ICF (2010a) Rationale: Potential Damage. <Groundwater exceedances of primary and secondary 

MCLs have been found onsite. There has not been any assessment of groundwater offsite and there are no 

other impact or damage claims. Additional well installation and post-closure groundwater monitoring was 

extended by five additional years by NDEQ due to evidence of contamination; however, there are no

other regulatory corrective actions, administrative rulings, or court decisions associated with the landfill.>

 

530 ICF (2010a).

531 Comment to the October 2011 NODA docket: EPA-HQ-RCRA-2011-0392-0217.

532 Comment to the October 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211): “The Nebraska DEQ (2009) 

extended the post closure groundwater monitoring period by 5 years and requested that additional monitoring wells 

be installed. 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 ash pond in question was removed from service in 1999 and is 

currently in post‐closure monitoring phase. The only alleged off‐site receptor of groundwater is one irrigation-well 

identified in the Reference Document as being located within one mile of the site. No well location or other 

identifying information was provided, nor could a determination be made as to whether the well location is upgradient or down-gradient from the site with respect to groundwater flow direction.”

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 

MCL for selenium.

 Onsite groundwater exceeded the EPA SMCL 

for 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

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

 NDEQ has required NPPD to install additional 

wells and extended the post-closure groundwater 

monitoring period from 10 years to 15 years due 

to evidence of contamination.
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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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 #21, 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 #21. ICF, 10/2010.

Gosselin et al., (2003): The Complex Dakota Aquifer: Managing Groundwater in Nebraska, David C. 

Gosselin, F. Edwin Harvey and Charles Flowerday. Geotimes, April 2003. Accessed Online May 2012.

http://www.geotimes.org/apr03/feature_nebraska.html

Gosselin et al., (2001): Geochemical Evolution of Ground Water in the Great Plains (Dakota) Aquifer of 

Nebraska: Implications for the Management of a Regional Aquifer System, David C. Gosselin, F. Edwin 

Harvey, and Carol D. Frost. Ground Water 39:1 (2001), pp. 98–108. Accessed Online May 2012.

http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1141&context=natrespapers&seiredir=1&referer=http%3A%2F%2Fwww.google.com%2Fsearch%3Fq%3Dlancaster%2Bcounty%2Bnebr

aska%2Bregional%2Baquifer%26hl%3Den%26gbv%3D2%26gs_l%3Dhp.1.0.0j0i8i30l9.3093.13686.0.1

5967.29.16.0.13.13.0.250.1844.7j7j2.16.0...0.0.SXYH_QqyV0s%26safe%3Don%26oq%3Dlancaster%2

Bcounty%2Bnebraska%2Bregional%2Baquifer%26aq%3Df%26aqi%3D%26aql%3D#search=%22lancas

ter%20county%20nebraska%20regional%20aquifer%22

DOE (1998): Environmental Monitoring Summary, Entombed Hallam Nuclear Power Facility, James D. 

Paulson, Project Manager, U.S. Department of Energy, Chicago Operations Office, Environmental 

Programs Group, March 11, 1998. Accessed Online December 2012.

www.lm.doe.gov/Hallam/LTSM00002733.pdf

PTb32. Asheville Steam Electric Plant, Duke Energy (formerly: Progress Energy),

533

Arden, Buncombe County, North Carolina

Type: Surface Impoundments.

Background and Description: The Asheville Steam Electric Plant,534 located south of Skyland, North 

Carolina, and immediately east of the French Broad River, has two unlined535 coal ash impoundments that 

accept CCR from the Asheville Plant. One (so called the 1982 ash pond) is actively being used for wet 

 

533 Progress Energy and Duke Energy merged into one corporation in July 2012.

534 The Asheville Electric Plant is the largest electric generating facility in Western North Carolina. Located near 

Skyland, N.C., the plant consists of two coal-fired units (376 MW steam capacity) and two combustion turbine units 

(324 MW-capacity). The Asheville Plant began commercial operation in 1964, with additions in 1971, 1999 and 

2000: https://www.progress-energy.com/assets/www/docs/company/plantbrochure.pdf

535 However, the appendices to the Dewberry & Davis, Inc. for Lockheed Martin (2009) Final Report indicate that a 

geomembrane was installed in the 1964 pond during the construction (2005) of the artificial wetland inside this 

Pond. 
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storage of CCR536 and has a capacity of 1,400 acre-feet. The other (so called the 1964 pond) has a 

capacity of 1,380 acre-feet. Removed from service in 1982 and drained, the 1964 pond is being used to 

dry-store material dredged from the wet pond and does not maintain a normal pool.537 In 2006, a 

constructed wetland was located within the 1964 Pond, to treat FGD blowdown and remove selenium and 

mercury.538 The impoundments lie less than 250 feet from the Plant’s property line. A residential 

subsection is located about 250 feet south from the Plant’s 1982 pond.

The Asheville Plant holds NPDES Permit No. NC0000396.539 The Permit authorizes discharges from 

Outfall 001 to the French Broad River (effluent from the Ash Pond Treatment System, including an ash 

pond constructed in 1982); from Outfall 002, which discharges to Lake Julian,

540 a once-through, noncontact cooling water; from stormwater Outfalls SW-1, SW-2, SW-3, SW-4, and SW-6, which discharge 

to Lake Julian, and from Outfall SW-5, which discharges to an unnamed tributary of Powell Creek in the 

French Broad River Basin.541

The ash ponds are located near the border of the Inner Piedmont Belt within the Blue Ridge Geologic 

Province/Southern Blue Ridge Physiographic Province of the Appalachian Mountain system. The Blue 

Ridge is a mountainous region consisting of highly deformed igneous, sedimentary, and metamorphic 

rocks from over one billion to approximately one-half billion years old.542

In 2006, the PZ- groundwater monitoring series wells (18 wells) were installed as part of an ash monofill 

siting Study. Additional monitoring wells (five GW-series wells) were installed in 2007 as part of 

USWAG’s voluntary monitoring effort.543 The GW-series wells and wells PZ-19 and PZ-22 have been 

 

536 Fly ash, bottom ash and boiler slag, as well as ash sluice water, categorical low volume wastewater, coal pile 

storm water, and runoff and other storm water. However, according to Fig. 1: Asheville Ash Ponds Water Level Map 

– November 13, 2012, prepared by Synterra for Progress Energy, the 1982 pond has become a dry CCR stacking 

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

537 Dewberry & Davis, Inc. for Lockheed Martin (2009).

538 The constructed wetlands treatment system is a continuous flow-through, with 750,000 ft3

capacity. It consists of 

equalization basins, a bulrush area, a rock filter, and a cattail area.

539 NC vs. Duke Energy (2013).

540 The 320-acre Lake Julian, a site of recreational fishing and other leisure activities, was built in 1963; it doubles 

also as the Plant’s cooling reservoir. http://www.citizentimes.com/article/20110715/HOMEGARDEN/307160011/South-Asheville-s-Lake-Julian-an-urban-respite 

541 The Asheville Plant’s wastewater treatment system also includes components that discharge only to other parts of 

the system, including: (i) an ash pond constructed in 1964, which can discharge to Outfall 001; (ii) a Chemical Metal 

Cleaning Treatment System, which can discharge through internal Outfall 004 and flow to Outfall 001; and (iii) a 

FGDS wet scrubber wastewater treatment system, which discharges through internal Outfall 005 and flows to 

Outfall 001.

542 According to Soil Survey of Buncombe County, North Carolina (2009), and Dewberry & Davis, Inc. for 

Lockheed Martin (2009), the rock within the impoundment areas is located within the Ashe Metamorphic Suite and 

Tallulah Falls Formation, a muscovite-biotite gneiss rock (locally sulfidic, inter-layered and gradational with mica 

schist, minor amphibolites, and hornblende gneiss). It is inferred that the upper section of these rocks is deeply 

weathered, forming a substantial horizon of saprolite.

543 For the distribution of the groundwater monitoring wells and the groundwater contours of the saprolite 

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

Attachment A (Asheville Progress Energy Water Level Map), for the November 13, 2012 and March 11, 2009 

mounded configuration of the water table around the 1982 (“New”) Ash Pond, respectively, as drawn by SynTerra. 

Appalachian Voices and Clean Water for North Carolina comment to the Steam Electric Industry/CCR Rule joint 

docket: EPA-HQ-RCRA-2013-0209-0037. This mounding is confirmed also by the similarity of constituent levels in 

a ‘background’ compliance boundary wells (CB-1) to that of contaminant levels in down-gradient CB wells (e.g., in 

CB-1, pH ranged in the sampling period between Nov. 2010 and April 2014 from 4.4 to 5.4, which, with the 
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sampled on a semi-annual basis since installation.544 Since no offsite monitoring data is available, 

Progress Energy is in the process of siting background wells and wells located at the Compliance 

Boundary to determine if a statistically significant release has occurred.545

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

data exceeded North Carolina Code 2L Groundwater Standards546 and/or secondary EPA Maximum 

Contaminant Levels (MCLs) for boron, chromium, iron, and manganese.547 As of May 2010, groundwater 

quality results from the monitoring system (GW-1 to GW-5; PZ-19 and PZ-22) around both the active 

and inactive ponds show persistent, elevated levels of iron, manganese and boron, and low pH; other 

wells show occasional MCL exceedances of arsenic, antimony, lead, and TDS. However, all results are 

from inside the Compliance Boundary as defined by the North Carolina 2L groundwater standards.548

Groundwater monitoring in 2007 found exceedances of state groundwater standards at down-gradient 

monitoring points. Boron exceedances ranged from 0.322 - 1.32 mg/L, over 4 times the state groundwater 

standard of 0.315 mg/L. Chromium exceedances ranged from 0.0817 - 0.0822 mg/L, over 1.6 times the 

state groundwater standard of 0.05 mg/L. Iron exceedances ranged from 0.319 - 46.2 mg/L, over 154 

times the state groundwater standard of 0.3 mg/L. Manganese exceedances ranged from 0.0608 - 2.04 

mg/L, up to 40 times the groundwater standard for manganese of 0.05 mg/L. The full extent of the plume 

is unknown.

USWAG claims549 that this case does not meet the criteria for a damage case because the allegations are 

only for on‐site groundwater and surface water. 

Tests in a home located between the French Broad River and an ash disposal pond at the Asheville power 

plant showed that its private well contains unsafe levels of contamination, according to the NC DENR. 

On October 23, 2013, state environmental officials said they would make Duke Energy provide residents 

of the home with alternative drinking water by November 15.550 In July 2014, NC DENR has ordered 

Duke Energy to install monitoring wells in a residential neighborhood outside Asheville to determine 

 

exception of well CB-4B, where pH values of 6.2-7.6 have been recorded, are essentially in the same range as in the 

‘down-gradient’ monitoring wells). 

544 Response to EPA CWA 308 and RCRA 3007 Information Request, August 2010 (A CD provided by 

EPA/OECA).

545 According to NC DENR Division of Water Quality (DWQ) feedback in response to EPA’s Region 4 inquiry 

following stakeholders’ complaints in the 2010 Knoxville and Charlotte Public Hearings (a January 3, 2012 email 

from L. DiGaetano to A. Livnat, EPA/OSWER), additional groundwater monitoring wells were installed at the 

Compliance Boundary in February 2011. 

546 NC Admin. Code title 15A, Subchapter 2L, herein: ‘2L Rules’.

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

claims that “iron and manganese... are common natural components of groundwater in North Carolina. When 

background concentrations exceed the published standard, background becomes the standard. Until a complete 

assessment is done (required by NC rules) of groundwater movement, all sources of contamination, and geochemical 

processes at work, any determination of damages and appropriate corrective actions are premature and likely 

inaccurate.”

548 Appendix L, pp. 1032-1046, and Figs. 1-3; Response to EPA CWA 308 and RCRA 3007 Information Request, 

August 2010 (A CD provided by EPA/OECA). Also, Progress Energy’s comment to the October 2011 NODA’s 

docket: EPA-HQ-RCRA-2011-0392-0272. 

549 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.”

550 Winston-Salem Journal (2013).
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whether toxic chemicals from the Asheville plant’s coal ash ponds, nearly a quarter mile away, are 

contaminating homeowners' drinking water. During tests at five homes in the fall of 2013, traces of 

thallium - below state or federal drinking water standards - were detected in one of the drinking wells. 

The state has been concerned about the contamination since 2012, but says more study is needed to 

confirm whether Duke's nearby impoundments are the source term. In the meantime, Duke has been 

delivering bottled water to two homes with drinking wells that tests show contain chemicals – among 

them thallium - associated with coal ash.551

Surface water: Ruhl et al., (2012), following their summer 2011 sampling of Asheville’s station ash pond 

outfall effluents and comparing them to those of the French River’s upstream and downstream samples, 

demonstrated selenium and cadmium exceedances of the CCC, and antimony, arsenic and thallium 

exceedances of their respective EPA’s MCLs.552

Evaluation against Proven Damage Criteria553

 

551 Winston-Salem Journal (2014).

552 The summer sampling event at the at the NPDES outfall for the Asheville Plant revealed selenium concentrations 

over 17 times the CCC (87.2 μg/L), antimony above the EPA’s MCL (6 μg/L) at 10.9 μg/L, cadmium exceeded the 

fresh water aquatic life (EPA CCC) standard (0.25 μg/L) at 0.8 μg/L, thallium concentrations were greater than the 2 

μg/L EPA MCL at 2.9 μg/L, and arsenic concentrations were greater than the 10 μg/L EPA MCL at 44.5 μg/L.

Based on this study, apparently the amount of pollutants discharged to the French Broad River significantly 

increased after the SOx scrubbers were installed on the Plant’s two generation units in 2005 and 2006. Ruhl et al., 

(2012) reported that samples collected during the summer of 2011 from mingled scrubber and coal ash waste 

flowing to the French Broad River contained arsenic at levels four times higher than the EPA drinking water 

standard, and selenium levels 17 times higher the agency’s standard for aquatic life.

The study demonstrated that the outfall on the French Broad River from the Asheville power plant had 

effluents with high contaminant concentrations, but because of high river discharge flow, the downstream water was 

significantly diluted (although still detectable). A mass-balance calculation, using boron as a conservative tracer in 

surface water, shows a contribution of 4.5 percent of CCR effluent into the downstream river with boron 

concentrations of 115 μg/L. However, the French Broad River’s flow can be greatly affected by droughts (e.g., 

during the severe drought of 2007−2008 in North Carolina, the discharge of the river decreased drastically to just 

over 5 m3/Sec, approximately five times lower than the river flow rate of 25 m3/sec during the time of the summer of 

2011 sampling. Using mass balance calculation for conservative constituents, a five-fold reduction in water flow 

would increase the CCR contribution up to 22 percent and would significantly increase the concentrations of such 

contaminants in the downstream river (e.g., boron up to 530 μg/L).

553 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 North Carolina 

2L Groundwater Standards (boron, chromium, iron, 

and manganese) and EPA SMCLs (iron and 

manganese).

 No offsite groundwater data are available.

Criterion 2: Where a scientific study provides 

documented evidence of another type of damage to 

 None
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Resolution: According to NC vs. Duke Energy (2013), since 2006, Duke Energy Progress has taken the 

following actions to maintain and upgrade the ash ponds and associated components of its wastewater 

treatment system at the Asheville Plant: (i) dewatering and removal of ash from the 1982 pond to increase 

storage capacity; (ii) structural improvements to the 1964 pond dam; (iii) installation of a drainage system 

to ensure stability of the 1964 pond; (iv) dewatering of and sediment removal from a stormwater pond to 

prepare for its eventual use as a settling basin; and (v) construction of a lined stilling basin. 

In addition, from 2006 to 2010, Duke Energy Progress engaged in voluntary groundwater monitoring at 

the Asheville Plant and submitted the results to DWQ. 554, 555 Following a 2009 letter DWQ sent to 

Progress Energy, directing them to place wells at their Compliance Boundaries (CBs) to help DENR 

determine if further action will be required, in 2010, Duke Energy Progress installed additional 

groundwater monitoring wells and began submitting mandatory groundwater monitoring data to DWQ.556

As of late in 2010, the NC DENR has not required a corrective action plan to restore contaminated 

groundwater at the Asheville plant to the level of the standards because the data reported was from wells 

located inside the State Compliance Boundary, and that data did not indicate the contamination is 

approaching the facility’s property lines. Following the installation of new monitoring wells at the 

Compliance Boundary, 557 DWQ evaluated the groundwater monitoring data to determine if any 

additional action was required under State Rules 15A NCAC 2L.01006(d).

Since 2011, DWQ has worked with Duke Energy Progress to implement DWQ’s June 17, 2011 Policy for 

Compliance Evaluation of Long-Term Permitted Facilities with No Prior Groundwater Monitoring 

Requirements. Finally, in 2013, Duke Energy Progress retained SynTerra Corporation to evaluate 

groundwater data and prepare a site conceptual model in response to the March 29, 2012 DWQ 

correspondence requesting assessment activities. The site conceptual model report was submitted to 

DWQ on April 22, 2013.

 

554 NC DENR’s comment to the proposed CCR rule docket: EPA-HQ-RCRA-2009-0640-9282.

555 According to Response to EPA CWA 308 and RCRA 3007 Information Request, August 2010 (A CD provided 

by EPA/OECA), in 2006 the PZ- groundwater monitoring series wells were installed as part of an ash Monofillsiting Study. Additional monitoring wells (GW-series) were installed in 2007 as part of USWAG’s voluntary 

monitoring effort. The GW-series wells and wells PZ-19 and PZ-22 have been sampled on a semi-annual basis since 

installation. The Compliance Boundary wells installed in 2010/2011 are sampled on a quaternary basis.

556 CB monitoring wells comprise the following eight down-gradient wells: GW-1, CB-3R, CB-4, CB-4B, CB-6, 

CB-7, and CB-8; and three background wells: CB-1, CB-5 (anthropomorphic floodplain well), and CB-9. For 

locations and a potentiometric map, see: http://portal.ncdenr.org/web/wq/hottopics/coalashregulation/gwatermonitoring, Map.

557 According to NC DENR Division of Water Quality’s (DWQ) feedback in response to EPA’s Region 4 inquiry 

following stakeholders’ complaints in the 2010 Knoxville and Charlotte Public Hearings (a January 3, 2012 email 

from L. DiGaetano to A. Livnat, EPA/OSWER), additional groundwater monitoring wells were installed at the 

Compliance Boundary in February 2011. 

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

 North Carolina Department of Environment and 

Natural Resources (DENR) has not required any 

corrective action and has no plans to take any 

regulatory action until groundwater 

contamination reaches the compliance boundary.
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Based on monitoring data from this site558 showing some constituents exceeded state water standards,559

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

citizens’ groups with the North Carolina Environmental Management Commission (EMC) requesting the 

following rulings:

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

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

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

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

compliance boundary around the CCR ponds;

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

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

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

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

contaminated by those sources; and

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

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

On December 3, 2012, the North Carolina EMC upheld state regulators' interpretation of groundwater 

protection requirements for coal ash 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.”560

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 groups561 ‘to protect North 

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

across the state.’ The lawsuit requires cleanup of groundwater contamination around unlined coal ash 

ponds, including those of Progress Energy’s Asheville Plant.562

 

558 For the period January 2010 to July 2012.

559 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 CCR ponds 

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

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

multiple contaminants. In particular, thallium exceeds groundwater standards at monitoring well CB-3 (in all 

samplings, between Nov. 2010 and July 2012) which was, until recently, located on the Compliance Boundary for 

the facility. NC DENR has not required corrective action, however, because Progress Energy purchased (on 

December 10, 2010) neighboring property, which relocated the Compliance Boundary such that well CB-3 is now 

inside the Boundary. According to NC DENR v. Progress Energy (2013), well CB-3 was replaced late in 2012 by 

well CB-3R, located on the new compliance boundary. Indeed, the only two monitoring wells with exceedances of 

thallium (CB-3: 0.48 μg/L, and CB-3R: 0.32 μg/L) are located as close as 500 feet from the residential subdivision 

impacted by thallium.

560https://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

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

562 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/
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On March 22, 2013, The North Carolina DENR filed a lawsuit seeking to require Progress Energy to 

address groundwater contamination at its coal-fired plant in Asheville asking the state court to order the 

utility to abate groundwater contamination and conduct further evaluation of the source and extent of 

contamination found around the facility.563 NC DENR claims that monitoring at the Asheville Steam 

Station has shown violations of groundwater standards for thallium,564 boron,565 chloride, selenium, 

sulfate, iron, and manganese, at the facility's compliance boundary, 500 feet from the permitted waste 

disposal area.566 In addition, although cadmium levels were measured “well below” the water quality 

standard, the chemical recently was detected. State water quality inspectors also observed liquid seeping 

from the facility's two coal ash ponds and other locations into the French Broad River, in violation of state 

and federal water quality laws.567 No drinking water violations at nearby wells have been found. NC 

DENR asked the court to order Progress Energy to stop the unlawful discharges and assess the cause, 

significance, and extent of the thallium and seepage violations. The agency also requested that the utility 

conduct additional sampling and more thoroughly evaluate groundwater quality. A Progress Energy 

representative said the company is evaluating the matter but denied violating its permit conditions. 

On May 20, 2013, NC DENR filed a complaint amending its March 2013 filing against Duke Energy over 

leaks and contamination at its Asheville Plant, adding similar issues found at the Riverbend Plant568 to the 

State’s lawsuit. According to Bloomberg BNA (July 2013), Duke Energy and NC DENR have tentatively 

reached a settlement, a proposed consent order has been filed in two state superior courts569 and public 

comments are being sought.570 Under the terms of the proposed agreement, the utility would be required 

to take steps to protect water quality at the two power plants and pay a fine of $99,112. Duke Energy also 

faces monetary penalties if it fails to meet the deadlines for any of the 33 specific compliance actions in 

 

563 NC DENR v. Progress Energy (2013). 

564 On October 1, 2010, the NC DNER DWQ Director established interim maximum concentration (IMAC) values 

for parameters for which a standard had not been established under the 2L Rules. The IMAC for thallium is 0.2 

μg/L. Groundwater samples collected from the Plant’s Ash Treatment System monitoring wells between November 

2010 and November 2012 show exceedances of the IMAC for thallium (CB-2: 0.21 μg/L in November 2012; CB-3, 

in six out of six sampling events; and in the recently installed CB-3R: one-time).

565 Boron 2L standard of 0.7 mg/L was exceeded in compliance wells CB-6 and CB-8 in seven out of seven 

sampling events from November 2010 to November 2012 (maximum: 0.985 and 1.36 mg/L, respectively), and in 

compliance well CB-3 prior to its discontinuation as a monitoring well (maximum: 0.895 mg/L, July 2012). In 

addition, compliance well CB-3R contained boron concentration of 1.29 mg/L during the November 2012 sampling 

event.

566 For chloride (CB-8), selenium (CB-8), and sulfate (CB-6), exceedances occurred in the quarterly sampling events 

between November 2010 and November 2011 but not since, rendering the compliance status of these wells for these 

particular constituents unclear. Iron was noted to exceed the 2L standard in four wells and manganese - in six 

monitoring wells in all or most of the sampling events in these wells from November 2010 to November 2012.

The full quarterly sampling record of the CB wells (between Nov. 2010 and April 2014) shows the 

following exceedances (in parentheses: number of wells and extreme recorded value): pH (in all but one well, 4.3); 

nitrate (10 wells, 19.7 μg/L); chloride (one well, 319 mg/L); sulfate (one well, 715 mg/L); iron (all 11 wells, 37.6 

mg/l); manganese (all 11 wells, 7,080 μg/L); thallium (2 wells, 0.48 μg/L), and TDS (two wells, 1,070 mg/L). See:

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

567 The facility is operating under an NPDES permit that was first issued on June 30, 1981, and reissued in 2005.

568 The 454 MW Riverbend Steam Station, established in 1929, is a four-unit coal-fired generating facility located in 

Gaston County, N.C. on the Catawba River. The Riverbend Plant ceased operating in October 2012 (Duke Energy’s 

Riverbend website: http://www.duke-energy.com/power-plants/coal-fired/riverbend.asp, accessed August 21, 2013). 

According to Bloomberg BNA, the Riverbend Plant ceased operating on April 1, 2013.

569 NC vs. Duke Energy (2013).

570 http://portal.ncdenr.org/c/document_library/get_file?uuid=0777b84e-8bca-40de-873d33f46ebaa7d3&groupId=38364
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

155

the proposed consent decree (e.g., assessing contaminants and determining their naturally occurring 

levels, mitigating “imminent hazards”, and certain monitoring and reporting activities.) Following the

February 2, 2014 spill into the Dan River, NC DENR rescinded the proposed CO.571

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 

continue the clean-closing of the Asheville plant’s inactive ash pond and either convert the two existing 

generating units to dry disposal or retire the units. If conversion were to be selected, it would be 

completed within 30-36 months of receiving the required permits.572

ICF (2010) Rationale: Potential Damage. <There are no exceedances of primary EPA MCLs in onsite 

or offsite groundwater; however there are onsite exceedances of North Carolina 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 #16. 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 #16. ICF, 10/2010. 

Dewberry & Davis, Inc. for Lockheed Martin (2009): Coal Combustion Waste Impoundment Dam 

Assessment Report Site 7 1982 Pond &1964 Pond Progress Energy Carolinas Asheville, North Carolina, 

Prepared By: Dewberry & Davis, Inc. for Lockheed Martin Services, Inc. (Sept. 11, 2009). Accessed 

Online July 2012.

Report: http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/asheville-final1.pdf

Appendices: http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys2/asheville-finalapp.pdf 

Soil Survey of Buncombe County, North Carolina (2009): United States Department of Agriculture, 

Natural Resources Conservation Service. Accessed Online July 2012.

http://soils.usda.gov/survey/online_surveys/north_carolina/NC021/Buncombe_NC.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

 

571 http://abcnews.go.com/US/wireStory/apnewsbreak-nc-delays-coal-ash-deal-duke-22455403

572 Attachment to an April 30, 2014 email from Frank Ney, EPA Region 4, to Alexander Livnat, EPA/OSWER, and 

Duke Energy (2014).
IIb Potential CCR Damage Cases PART I (Cases 1-32) December 2014

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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

NC DENR v. Progress Energy (2013): State of North Carolina Department of Environment and Natural 

Resources, Division of Water Quality v. Carolina Power & Light Company (d/b/a Progress Energy 

Carolinas, Inc.) in the General Court of Justice Superior Court Division: Complaint and Motion for 

Injunctive Relief, March 22, 2013. Accessed Online March 2013. (North Carolina v. Carolina Power & 

Light Co., N.C. Superior Court for Wake County, No. 13-cv-4061, 3/22/2013). 

http://op.bna.com/env.nsf/id/maln-965t2t/$File/NC%20ash.pdf

NC vs. Duke Energy (2013): North Carolina DENR/DWQ v. Duke Energy Progress Inc., in the General 

Court of Justice Superior Court Division 13 CVS 4061 and North Carolina DENR/DWQ v. Duke Energy 

Carolinas LLC in the General Court of Justice Superior Court Division 13 CVS 9352, Draft Consent 

Order, July 2013. Accessed Online August 2013.

http://portal.ncdenr.org/c/document_library/get_file?uuid=0777b84e-8bca-40de-873d33f46ebaa7d3&groupId=38364

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

Winston-Salem Journal (2014): Duke ordered to test near homes for coal chemicals, Winston-Salem 

Journal, July 3, 2014. Accessed Online July 2014.

http://www.journalnow.com/news/state_region/duke-ordered-to-test-near-homes-for-coalchemicals/article_50c82569-fdff-5b01-96c7-d447b63a4b55.html

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

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