Alexander Livnat, Ph.D.

12/18/2014

This is the fifth and last volume describing EPA’s current state of knowledge of CCR damage cases. 

This volume comprises 15 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 rejected damage case in reference to pre-existing screenings. Ample 

footnotes and a list of references provide links to sources of information.
III. CCR Rejected Damage Cases December 2014

1

III. Coal Combustion Residuals

Rejected Damage Cases

(Cases R01 to R15)
III. CCR Rejected Damage Cases December 2014

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Table of Contents

R01. Florida Power Corporation P.L. Bartow Plant, Pinellas County, Florida ...........................................3

R02. Florida Power & Light Port Everglades Plant, Fort Lauderdale, Broward County, Florida ...............4

R03. Florida Power & Light Port Riviera Plant, Riviera Beach, Palm Beach County, Florida...................7

R04. Rocky Acres Coal Combustion By-Product Disposal Site – Bunge North America Corp., (Also: 

Grays Siding), Oakwood, Vermillion County, Illinois.................................................................................8

R05. New England Power, Brayton Point Power Station, Somerset, Bristol County, Massachusetts.......11

R06. Salem Acres Site, Salem, Essex County, Massachusetts ..................................................................13

R07. Vitale Fly Ash Pit, Beverly, Essex County, Massachusetts..............................................................16

R08. Arizona Public Service (APS) Four Corners Power Plant, Fruitland, San Juan County, New Mexico

....................................................................................................................................................................20

R09. Antelope Valley Station - Basin Electric Power Cooperative, Beulah, Mercer County, North Dakota

....................................................................................................................................................................36

R10. Industrial Excess Landfill (IEL) Superfund Site, Uniontown, Stark County, Ohio..........................40

R11. Boardman Plant – Portland General Electric (PGE), Boardman, Morrow County, Oregon .............44

R12. Big Stone Power Plant – Otter Tail Power, Big Stone City, Grant County, South Dakota...............48

R13. Reliant Energy Elrama Plant, Washington County, Pennsylvania....................................................54

R14. Virginia Electric Power Co. (VEPCO) Possum Point, Prince William County, Virginia.................56

R15. Mitchell Generating Station, American Electric Power, Moundsville, Marshall County, West 

Virginia .......................................................................................................................................................58
III. CCR Rejected Damage Cases December 2014

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R01. Florida Power Corporation1 P.L. Bartow Plant, Pinellas County, Florida

Type: Unspecified Waste Units.

Summary and Description: The FPL P.L. Bartow Plant location is on Weedon Island in Tampa Bay, 

on the eastside of St. Petersburg and near the Gandy Bridge, Pinellas County.2 The .L. Bartow Plant, 

commissioned in 1958, consisted of three fossil fuel steam generators (Units 1 and 2, 120 MW each, and 

Unit 3, 225 MW), and four simple cycle units, each of which has a nominal capacity of 56 MW. The 

steam generators used residual fuel oil and natural gas.

According to EPA (2007), this is one of nine sites managing oil combustion wastes that have ground 

water contamination identified for the 1999 Report to Congress. Seven of the nine, including this site, 

were documented in EPRI’s oil ash report.3 According to EPRI (2010), the site contains an unlined, 4.7-

acre pond, but construction and operational dates are not provided. The site is located on Tampa Bay and 

groundwater flow is likely towards the bay. No potential human receptors are located between the plant 

and bay.

Impact: At each of the nine sites, the waste management unit was found to negatively impact ground 

water in one of the following ways: (1) at least one constituent was found in down-gradient ground water 

monitoring wells above its MCL, but was not present in up-gradient wells above its MCL, or (2) a 

constituent exceeded its MCL both up-gradient and down-gradient, but the down-gradient concentrations 

were noticeably higher than the up-gradient concentrations. These constituents most often include 

manganese and nickel. Other parameters (including arsenic, cadmium, chromium, selenium, silver, and 

zinc) exceeded their MCL in down-gradient wells at only one of the sites. Although vanadium does not 

have an MCL, the parameter was found in ground water down-gradient of waste management units. 

At several of the sites reviewed, EPA found that the waste management unit very likely contributes to the 

contamination of constituents, such as manganese, nickel, and vanadium, into ground water. As many of 

these sites, the P.L. Bartow Plant is located next to the Ocean (Tampa Bay), where such releases can be 

diluted and no drinking water wells are located between the management unit and the surface water. EPA 

did not find any cases of drinking water contamination or other environmental damages resulting from 

these releases.

According to EPRI (2010), parameters currently monitored in the four site wells and pond include 

aluminum, chromium, iron, magnesium, and nickel. Nickel is the only parameter that exceeds the 

established screening level, and then only in one monitoring well (MW-4) with any consistency. 

Aluminum, chromium, and iron sporadically exceed the established MCLs or screening levels, and during 

the period of review (2005-2009) were more often below these standards than above them.

Remediation/Resolution: According to EPRI (2010), Mitigation has been performed and the pond is no 

longer used for oil ash management. The oil ash storage pond was cleaned and is now only used for storm 

water storage. The plant has since been converted to burn natural gas, so there is no longer an oil ash 

discharge.

 

1 Florida Power Corporation is a subsidiary of Progress Energy.

2 The retired P. L. Bartow Steam Power Plant (Units 1, 2, and 3 of the P. L. Bartow plant were demolished on 28 

Feb 2012) was replaced with new and more efficient, natural gas-burning, combined-cycle technology. This state-ofthe-art plant began commercial operation on June 1, 2009. The new units are more efficient and environmentally 

friendly. For information on the Plant’s repowering project plans, see Florida Department of Environmental 

Protection (2006).

3 EPRI (1998).
III. CCR Rejected Damage Cases December 2014

4

Basis for Consideration as a Potential Damage Case: This case has been categorized as a potential 

damage case for the following reasons: exceedance of one or more MCL standards down flow from the 

plant’s disposal facility that does not impact drinking water wells offsite.

Rationale for Rejection: Site manages oil combustion ash waste.

References

EPA (2007): Coal Combustion Waste Damage Case Assessments, July 2007, Case #39, docket ID EPAHQ-RCRA-2006-0796-0015. 

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

Technical Background Document for the Report to Congress (1999): Technical Background Document 

for the Report to Congress on Remaining Wastes from Fossil Fuel Combustion: Potential Damage Cases, 

March 15, 1999. Accessed Online February 2013. 

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/ffc2_397.pdf

EPRI (1998): Oil Combustion By-Products: Chemical Characteristics, Management Practices, and

Groundwater Effects. March 1998. Accessed Online December 2014.

http://www.epri.com/search/Pages/results.aspx?k=Oil%20Combustion%20ByProducts:%20Chemical%20Characteristics,%20Management%20Practices,%20and%20Groundwater%20

Effects

EPRI (2010): Evaluation of Coal Combustion Product Damage Cases, Volume 2: Site Information. EPRI 

1020554, Final Report, September 2010. Accessed Online August 2012. 

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%20

Product%20Damage%20Cases

Florida Department of Environmental Protection (2006): Technical Evaluation and Preliminary 

Determination, Florida Power Corporation d/b/a Progress Energy Florida P.L. Bartow Power Plant, 

Pinellas County, 1,475 Megawatt Power Plant Repowering Project, New Gas-fueled Combined Cycle 

Unit and Simple Cycle Unit, Shutdown of three Residual Oil-fueled Units, DEP File No. 1030011-010-

AC (PSD-FL-381), Florida Department of Environmental Protection Division of Air Resource 

Management Bureau of Air Regulation New Source Review Section, December 13, 2006. Accessed 

Online February 2013.

http://www.dep.state.fl.us/air/emission/construction/pinellas-bartow/TECHNICAL381.pdf

§316 (b) Case Studies, Part D: The Tampa Bay watershed. 

http://water.epa.gov/lawsregs/lawsguidance/cwa/316b/phase2/upload/chd1.pdf

R02. Florida Power & Light Port Everglades Plant, Fort Lauderdale, Broward County, 

Florida

Type: Wastewater Treatments and Land Application Basins.

Summary and Description: The FPL Port Everglades Plant location is at 8100 Eisenhower Boulevard, 

Fort Lauderdale in Broward County. The Port Everglades Plant, commissioned in the 1960s,4currently 

 

4 Unit 1: 1960, Unit 2: 1961, Unit 3: 1964, and Unit 4: 1965. The Plant has been burning about 60 percent oil and 40 

percent natural gas.
III. CCR Rejected Damage Cases December 2014

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consists of four fossil fuel steam generator that together produce approximately 1,200 megawatts (MW) 

of electrical power and 12 small simple cycle combustion turbine generators (CTGs) that together 

produce approximately 504 MW. The steam generators use residual fuel oil and natural gas.5, 6

According to EPA (2007), this is one of nine sites managing oil combustion wastes that have ground 

water contamination identified for the 1999 Report to Congress. Seven of the nine, including this site, 

were documented in EPRI’s oil ash report.7 The low-volume wastewater treatment system includes: a 

solids settling basin, precipitation basin, percolation basin and their overflow areas. The solids settling 

and precipitation basins are lined with an impermeable liner. The percolation basin has a limestone 

bottom. The facility also has an equipment-area runoff treatment system that is designed to collect and 

retain the first inch of rainfall that falls on the plant’s equipment area plus minimal flows from the service 

water rinses in the power-block area. In addition, the facility has two land application systems (LAS). 

LAS R-001, a percolation basin, receives discharge process wastewater, boiler blowdown, treated storm 

water, reverse osmosis reject water and metal cleaning waste water. LAS R-002, a storm water 

forwarding basin, receives storm water.8 According to EPRI (2010), groundwater is assumed to be toward 

the Atlantic Ocean. The Plant is located in urban area, and potential receptors are likely to be served by 

municipal water supply.

Impact: At each of the nine sites, the waste management unit was found to negatively impact ground 

water in one of the following ways: (1) at least one constituent was found in down-gradient ground water 

monitoring wells above its MCL, but was not present in up-gradient wells above its MCL, or (2) a 

constituent exceeded its MCL both up-gradient and down-gradient, but the down-gradient concentrations 

were noticeably higher than the up-gradient concentrations. These constituents most often include 

manganese and nickel. Other parameters (including arsenic, cadmium, chromium, selenium, silver, and 

zinc) exceeded their MCL in down-gradient wells at only one of the sites. Although vanadium does not 

have an MCL, the parameter was found in ground water down-gradient of waste management units. 

At several of the sites reviewed, EPA found that the waste management unit very likely contributes to the 

contamination of constituents, such as manganese, nickel, and vanadium, into ground water. As many of 

these sites, the Port Everglade Plant is located next to the ocean, where such releases can be diluted and 

no drinking water wells are located between the management unit and the surface water. EPA did not find 

any cases of drinking water contamination or other environmental damages resulting from these releases.

A review of DMR data for the past year revealed permit violations during March 2007 for nickel (permit 

limit ≤ 0.10 mg/L) at ground water monitoring locations NOB-2B (0.11 mg/L) and NOB-3A-R (0.16 

 

http://www.broward.org/NaturalResources/ClimateChange/Documents/Port%20Everglades%20Modernization%20-

%20Climate%20Change%20Task%20Force%20Meeting.pdf

5 http://www.dep.state.fl.us/air/emission/construction/port_everglades/Draft%200110036-010-AC%20-

%20TEPD.PDF

6 According to Florida DEP (2012), FPL proposes to construct a nominal 1,250 megawatts (MW) natural gas-fueled 

combined cycle unit (Unit 5) and ancillary equipment. The project includes the permanent shutdown and 

dismantling of the four existing fossil fuel steam generators and their respective stacks. Unit 5 will be called the Port 

Everglades Next Generation Clean Energy Center (PEEC). The steam generating units will be shut down and 

dismantled during 2013. There will be no overlap of operation between the existing units and the proposed PEEC, 

which is anticipated to have an in-service date during 2016. The proposal was approved by the State’s Public 

Service Commission late in March 2012 (CBS Miami, 2012).

7 EPRI (1998).

8 Florida DEP (2008). It is not known, however, whether the cited basins have been protectively lined since the 

onset of their operations.
III. CCR Rejected Damage Cases December 2014

6

mg/L); and, for lead (permit limit ≤ 0.015 mg/L) at ground water monitoring location D-1A (0.016 mg/L). 

There were no reported surface water discharge permit limit violations.9

Remediation/Resolution: The facility has no Administrative Orders or Consent Orders. The facility has 

no mixing zones.10

Basis for Consideration as a Potential Damage Case: This case has been categorized as a potential 

damage case for the following reasons: exceedance of one or more MCL standards down flow from the 

plant’s disposal facility that does not impact drinking water wells offsite.

Rationale for Rejection: Site manages oil combustion ash waste.

References

EPA (2007): Coal Combustion Waste Damage Case Assessments, July 2007, Case #37, docket ID EPAHQ-RCRA-2006-0796-0015.

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

Technical Background Document for the Report to Congress (1999): Technical Background Document 

for the Report to Congress on Remaining Wastes from Fossil Fuel Combustion: Potential Damage Cases, 

March 15, 1999. Accessed Online February 2013. 

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/ffc2_397.pdf

EPRI (1998): Oil Combustion By-Products: Chemical Characteristics, Management Practices, and

Groundwater Effects. March 1998. Accessed Online December 2014.

http://www.epri.com/search/Pages/results.aspx?k=Oil%20Combustion%20ByProducts:%20Chemical%20Characteristics,%20Management%20Practices,%20and%20Groundwater%20

Effects

EPRI (2010): Evaluation of Coal Combustion Product Damage Cases, Volume 2: Site Information. EPRI 

1020554, Final Report, September 2010. Accessed Online August 2012. 

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%20

Product%20Damage%20Cases

Florida DEP (2012): Technical Evaluation & Preliminary Determination, Florida Power & Light 

Company / Port Everglades Next Generation Clean Energy Center, Broward County, Florida, Project No. 

0110036-010-AC, Florida DEP, April 2012. Accessed Online February 2013.

http://www.dep.state.fl.us/air/emission/construction/port_everglades/Draft%200110036-010-AC%20-

%20TEPD.PDF

Florida DEP (2008): Effluent Quality Assessment, FPL Port Everglades Plant, Broward County, NPDES 

#FL0001538, Sampled December 3, 2007. February 2008. Accessed Online February 2013.

ftp://ftp.dep.state.fl.us/pub/labs/lds/reports/8104.pdf

CBS Miami (2012): FPL Gets Go-Ahead for Port Everglades Plant, CBS Miami, March 27, 2012. 

Accessed Online August 2014.

http://miami.cbslocal.com/2012/03/27/fpl-gets-go-ahead-for-port-everglades-plant/

 

9

Information provided to Florida DEP (2008) by Lisa Gatch of FDEP Southeast District.

10 Florida DEP (2008).
III. CCR Rejected Damage Cases December 2014

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R03. Florida Power & Light Port Riviera Plant, Riviera Beach, Palm Beach County, 

Florida

Type: Unspecified Waste Units.

Summary and Description: The FPL Port Riviera Plant location is at 300 Broadway, Riviera Beach, 

Florida 33404.11 The site is bound to the east by the Lake Worth Lagoon (Intracoastal Waterway) and on

the west by US. 1. The site has barge access via the Port of Palm Beach. A rail line is located near the 

plant. The Port Riviera Plant, commissioned in the early 1960s, consisted of two fossil fuel steam 

generators that together produce approximately 565 MW of electrical power.12 The steam generators use 

residual fuel oil and natural gas.

According to EPA (2007), this is one of nine sites managing oil combustion wastes that have ground 

water contamination identified for the 1999 Report to Congress. Seven of the nine, including this site, 

were documented in EPRI’s oil ash report.13 According to EPRI (2010), groundwater is assumed to be 

toward the Atlantic Ocean. The Plant is located in urban area, and potential receptors are likely to be 

served by municipal water supply.

The Riviera Plant site is underlain by the surficial aquifer system. The Surficial aquifer system in eastern 

Palm Beach County is primarily composed of sand, sandstone, shell, silt, calcareous clay (marl), and 

limestone deposited during the Pleistocene and Pliocene Epochs. The sediments forming the aquifer 

system are the Pamlico Sand, Fort Thompson Formation (Pleistocene) and the Caloosahatchee Marl 

(Pleistocene and Pliocene). Permeable sediments in the upper part of the Tamiami Formation (Pliocene) 

are also part of the aquifer system. The sediments in the eastern portion of the county are appreciably 

more permeable than in the west due to better sorting and less silt and clay content. The surficial aquifer 

is underlain by at least 600 feet the Hawthorn Formation (a confining unit). The Floridan Aquifer System 

underlies the Hawthorn formation.14

Impact: At each of the nine sites, the waste management unit was found to negatively impact ground 

water in one of the following ways: (1) at least one constituent was found in down-gradient ground water 

monitoring wells above its MCL, but was not present in up-gradient wells above its MCL, or (2) a 

constituent exceeded its MCL both up-gradient and down-gradient, but the down-gradient concentrations 

were noticeably higher than the up-gradient concentrations. These constituents most often include 

manganese and nickel. Other parameters (including arsenic, cadmium, chromium, selenium, silver, and 

zinc) exceeded their MCL in down-gradient wells at only one of the sites. Although vanadium does not 

have an MCL, the parameter was found in ground water down-gradient of waste management units. 

 

11 The Riviera Beach plant was demolished in 2011. FPL’s Riviera Beach natural gas-fired Next Generation Clean 

Energy Center would come online in 2014. FPL received need determination approval from the FPSC for the 

modernization of the Riviera Plant in September 2008, and Site Certification was received for Riviera in November 

2009.

12 According to Florida Power & Light (2011), Unit 3 came online in June 1962, and Unit 4 – in March 1963. Units 

1 and 2 were previously retired and dismantled. The warm water discharges from the plant attract manatees, an 

endangered species. Water from the Lake Worth Lagoon (Intracoastal Waterway) is currently used for once-through 

cooling water. The new plant will utilize portions of the existing once through cooling water intake and discharge 

structures. Water for cooling pump seals and irrigation will come from three onsite surficial aquifer wells. Process 

and potable water for the converted plant will come from the existing City of Riviera Beach potable water supply.

13 EPRI (1998).

14 Florida Power & Light (2011).
III. CCR Rejected Damage Cases December 2014

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Remediation/Resolution: At several of the sites reviewed, EPA found that the waste management unit 

very likely contributes to the contamination of constituents, such as manganese, nickel, and vanadium, 

into ground water. As many of these sites, the Port Riviera Plant is located next to the ocean, where such 

releases can be diluted and no drinking water wells are located between the management unit and the 

surface water. EPA did not find any cases of drinking water contamination or other environmental 

damages resulting from these releases.

Basis for Consideration as a Potential Damage Case: This case has been categorized as a potential 

damage case for the following reasons: exceedance of one or more MCL standards down flow from the 

plant’s disposal facility that does not impact drinking water wells offsite.

Rationale for Rejection: Site manages oil combustion ash waste.

References

EPA (2007): Coal Combustion Waste Damage Case Assessments, July 2007, Case #38, docket ID EPAHQ-RCRA-2006-0796-0015.

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

Technical Background Document for the Report to Congress (1999): Technical Background Document 

for the Report to Congress on Remaining Wastes from Fossil Fuel Combustion: Potential Damage Cases, 

March 15, 1999. Accessed Online February 2013. 

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/ffc2_397.pdf

EPRI (1998): Oil Combustion By-Products: Chemical Characteristics, Management Practices, and

Groundwater Effects. March 1998. Accessed Online December 2014.

http://www.epri.com/search/Pages/results.aspx?k=Oil%20Combustion%20ByProducts:%20Chemical%20Characteristics,%20Management%20Practices,%20and%20Groundwater%20

Effects

EPRI (2010): Evaluation of Coal Combustion Product Damage Cases, Volume 2: Site Information. EPRI 

1020554, Final Report, September 2010. Accessed Online August 2012. 

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%20

Product%20Damage%20Cases

Florida Power & Light (2011): Florida Power & Light Company’s 2011 Ten Year (201 1-2020 ) Power 

Plant Site Plan, April 2011. Accessed Online February 2013.

http://www.psc.state.fl.us/library/FILINGS/11/02172-11/02172-11.pdf

R04. Rocky Acres Coal Combustion By-Product Disposal Site – Bunge North America

Corp.,15 (Also: Grays Siding), Oakwood, Vermillion County, Illinois

Type: Structural Fill (CCR from a fluidized bed, non-utility boiler).

 

15 EIP (2010) names the CCR source as Bunge Milling, Inc.
III. CCR Rejected Damage Cases December 2014

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Background and Description: About 380,000 tons of CCR from FBC coal-fired boilers at the Bunge 

N. America Co., which operates a dry corn mill in Danville, Ill deposited on a 25-acre site16 over a 10-

year period in a ravine adjacent to the Grays Siding neighborhood. The subdivision is a rural community 

of 30 homes that all draw their drinking water from groundwater. The disposal was allowed under state 

law as a fill operation. Surface water drainage enters lake in Kickapoo State Park. Drainage from the site 

is flowing into #6 Lake in the Park, a designated fishing lake with a boat ramp.17 Drainage from the lake 

goes into the Middle Fork of the Vermillion River, a designated National Wild and Scenic River

Impact: EIP (2010) claims18 that State testing of the waste dumped at the site found lead levels of 

between 3.5 to 4 times of the Illinois standard of 0.007 mg/L. Subsequent testing of the fill surface found 

high boron levels. High levels of lead, iron and manganese, above the state groundwater standards have 

also been found in two residential wells in the adjacent Grays Siding neighborhood. IEPA advised the 

residents in these two homes to stop drinking water from their wells, but no alternative source of drinking 

water has been provided. In addition, the coal ash itself has been encroaching on residential property, and 

the residential community is adversely affected by uncontrolled fugitive dust from the site.

EIP (2010) also claims19 that subsequent groundwater monitoring has identified arsenic as another 

Contaminant of Concern. Groundwater monitoring results in 2009 include levels of arsenic, barium, 

chromium, iron, lead, manganese, and nickel that exceed Illinois groundwater quality standards.

The issue of the extent and source of groundwater contamination at the site is inconclusive, due to 

incomplete understanding of the site's geohydrology. The total depths of 9 IEPA-sampled drinking water 

wells range from about 65 to 220 feet in the shaly- bedrock, which underlies the uppermost 30 feet-thick 

glacial/alluvial deposits. However, the ravine at the site is deep enough to cut through the overburden and 

possibly into the weathered bedrock shale. The source of the elevated iron, lead, and manganese in some 

of the drinking water wells may be the surficial aquifer, leachate from the CCR, or turbidity in the 

weathered shale aquifer. The vertical hydraulic gradients at the site have not yet been measured.20

Bunge North America Corp. placed three monitoring wells on one side of the ravine and has been recently 

conducting a voluntary study as to whether the lead exceedances observed at some of the residences are 

related to the fill, lead in the domestic piping of the tested residences (to avoid contamination, no direct 

testing of well water was conducted by the State),21 or possibly other sources. Exceedances of iron, lead, 

manganese, and other metals in Bunge's monitoring wells was probably due to turbidity, as filtering of the 

well samples largely eliminated these exceedances. Lead did not exceed standards in any of Bunge's 

samples from the two drinking water wells that had exceedance of lead in past IEPA samples.22

 

16 The site is located about 1/3 of a mile north of Illinois Route 150, and about 1.2 miles east of Danville’s town 

center. According to Paul Purseglove, manager of field operations for the Illinois Environmental Protection Agency 

(IEPA), Bunge contracted with a private company that hauled and dumped the fly ash in the Grays Siding area on 

private property owned by Robert Porter and Jack Salts. The original plan was to cap the fly ash pile once it reached 

capacity and cover with six to 12 inches of soil and then erect a building on top.

http://www.news-gazette.com/news/agriculture-and-environment/2007-12-14/residents-fear-fly-ash-dump.html

17 http://dnr.state.il.us/lands/Landmgt/PARKS/R3/kickapoo.htm

18 EarthJustice’s comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0446.

19 Citing K. Madonna, the plaintiffs’ lawyer. Recently (early in 2008), a number of Grays Siding residents have 

retained the New York law firm of Bobby Kennedy Jr. and Kevin Madonna, who specialize in environmental law, 

and were evaluating their legal options. According to EIP (2010), The Bunge Corporation has refused to accept 

liability for any damages caused by disposal of their CCR.

20 IEPA’s response to Earthjustice’s 2007 NODA comment.

21 According to EIP (2010), the water sampling location (at the tap) creates some uncertainty as to whether the lead 

originated in the groundwater or from water pipes in the houses.

22 IEPA’s response to EarthJustice’s 2007 NODA comment.
III. CCR Rejected Damage Cases December 2014

10

Resolution/Remediation: Similarly to other CCR ‘beneficial use’ sites in Illinois, this site has not been 

required to obtain a permit.23 In 2006, the Illinois Environmental Protection Agency (IEPA) sent a notice 

to the owners/operators of the ash disposal site informing them that the site was an illegal open dump. In 

response, the owner/operators claimed that the site was not a landfill, but a beneficial use site and that a 

building would be constructed on top of the coal ash. To date, no building or impervious surface has ever 

been constructed on top of the site.24 Bunge Corporation claims that the site owner/operators, who have 

filed for bankruptcy, are liable for any damages at the site. However, in response to a request from IEPA, 

Bunge Corporation agreed to install groundwater monitoring wells and sample them. Bunge Corporation 

also prepared and submitted to IEPA a Groundwater Investigation Work Plan in August 2007. The site 

has been inactive since 2006, and Bunge now disposes of its fly ash at a mine reclamation site elsewhere 

in Illinois. 

IEPA claims25 that it had subjected the fly-ash to an annual leach testing, which, in December 2005 

resulted in boron exceedance (boron levels in past IEPA private drinking water well samples, about 85-

340 ppb, were well below the SMCL, 2ppm). Bunge then complied with the State's requirement to 

remove all the 'affected' fly-ash, and in early 2006, ceased CCR placement at the site. However, since the 

term 'structural fill' has no regulatory definition, it is unclear under what circumstances this site - which 

has not been capped, nor has it ever served as a foundation for a structure - might be ultimately declared 

an illegal, other than if it fails to meet applicable requirements.26 Furthermore, a review of the site's 

compliance with other state regulations, e.g., those controlling run-off and air emissions, would likely be 

triggered only by stakeholders' complaint.

In the aftermath of this case, and in response to the Grays Siding situation, Ill. Senate Bill 2567 

(sponsored by Mike Frerichs, D-Champaign) and House Bill 4172 (Bill Black, R-Danville) were 

proposed in order to toughen procedures regulating the disposal of fly ash.27, 28,29

In 2010, Bunge purchased the private property that contains the ash-filled ravine, and has completed 

several phases of groundwater monitoring to determine whether the fill has impacted groundwater at the 

site, but according to IEPA, results have been inconclusive. Bunge has also removed some of the coal ash 

and has devised a plan for capping the fill, using several feet of clay-capping.30

 

23 The generator must, however, characterize the waste in accordance with 35 Ill. Adm. Code §722.111 (40 CFR 

§262.11) and comply with §3.135 of the Illinois Environmental Protection Act including notification to IEPA; as 

well as gain consent from the property owner(s) for the fill operation.

24 This statement is based on a Google Earth image, with imagery dated as May 16, 2012.

25 IEPA’s response to EarthJustice’s 2007 NODA comment: Summarized in Alleged DCs NODA Comments 

Overview 10_7_08, an EPA draft document.

26 I.e., in Section 3.135 of the Illinois Environmental Protection Act, including cover requirements at 3.135(a)(8) and 

concentration limits at 3.135(a-5) (B).

27 Two bills would restrict fly ash. The News Gazette, 3/14/2008: http://www.news-gazette.com/news/politics-andgovernment/2008-03-14/two-bills-would-restrict-fly-ash.html

28 The Bill was apparently approved (e.g., requirement for 12” soil cover): 

http://www.netl.doe.gov/technologies/coalpower/ewr/coal_utilization_byproducts/states/illinois.html

29 As proposed, the bills:

– Require fly ash to be covered by 12” inches of soil within 30 days of its placement or completion of a fill project 

(The fly ash at Grays Siding has never been covered);

– Prohibit fly ash from being used as structural fill within 250 feet of an active well that is used for drinking water;

– Require IEPA to adopt specific guidelines for using fly ash as structural fill;

– Require IEPA to adopt a site approval process for a fly ash fill project, a process that must also include an 

opportunity for public comment and input from the Illinois Department of Natural Resources (IDNR) on whether the 

project will affect any endangered species;

– Allow anyone harmed by a violation of the procedures to seek legal action for damages and other legal remedies

30 The News Gazette (2011).
III. CCR Rejected Damage Cases December 2014

11

Evaluation:31 “Groundwater exceedances of the primary EPA MCL for arsenic, barium, chromium, and 

lead have been found on site. Offsite groundwater exceedances could not be verified or are not 

exceedances of risk based standards. Claims of fugitive dust adversely impacting the residential 

community and surface water drainage degrading a lake are not supported with site-specific data, 

scientific study. The groundwater investigation undertaken by Bunge Corporation is voluntary, and is not 

being driven by an administrative ruling or court decision.”

Rationale for Rejection: CCR is from a non-utility coal-fired boiler (dry corn mill operation).

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 #5. 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 #5. ICF, October 2010.

R05. New England Power, Brayton Point Power Station,32 Somerset, Bristol County, 

Massachusetts

Type: Surface Impoundments, Landfill.

Summary and Description: Brayton Point Station was built on approximately 250 acres at the head of 

the Mount Hope Bay, an upper embayment of the Narragansett Bay Estuary in Somerset, Massachusetts 

in 1963.33 Brayton Point is a peninsula formed by the confluence of the Lee and Taunton rivers.34 Brayton 

Point Station is the largest coal- and oil-powered generating station in New England. According to EPRI 

(2010), groundwater likely flows into the Hope Bay. There is a subdivision of approximately 150 homes 

directly east of the plant.

The site managed oil ash settling ponds from approximately 1969 to 1975 and unlined wastewater 

treatment basins until late in 2000.35 Brayton Point Power Station is one of nine sites managing oil 

combustion waste or co-managing oil combustion waste and CCR wastes that have ground water 

contamination identified for the 1999 Report to Congress.36 Seven of the nine, including this site, were 

documented in EPRI’s oil ash report.37

 

31 ICF (2010).

32 In January 2005, the Station was purchased by Dominion Power. 

https://www.dom.com/about/stations/fossil/brayton-point-power-station.jsp (No longer accessible).

33 For the Plant’s environmental setting and ownership history, see EPA Office of Water (2002).

34 The 1,600/1,537.6 MW nameplate/net capacity Station consists of four generation units (nameplate capacity/net 

capacity and year online in parenthesis): Unit 1 (250/243 MW, 1963); Unit 2 (250/240 MW, 1964); Unit 3 (650/612 

MW, 1969); and Unit 4 (450/435 MW, 1974). Units 1-3 are coal-fueled, whereas Unit 4 is fueled by oil/natural gas. 

There are also three diesel generators with 7.6 MW combined. The Station burns 40,000 tons of barge-delivered coal 

every three days, creating 300,000 tons of fly ash a year. Brayton Point Draft NPDES (2002) and 

http://www.heraldnews.com/news/x501038221#ixzz2M3t0rMJY (No longer accessible).

35 Dominion’s comment to the 2011 NODA: EPA-HQ-RCRA-2011-0392-0254.

36 Technical Background Document for the Report to Congress (1999).

37 EPRI (1998).
III. CCR Rejected Damage Cases December 2014

12

Impact:38 At each of the nine sites, the waste management unit was found to negatively impact ground 

water in one of the following ways: (1) at least one constituent was found in down-gradient ground water 

monitoring wells above its MCL, but was not present in up-gradient wells above its MCL, or (2) a 

constituent exceeded its MCL both up-gradient and down-gradient, but the down-gradient concentrations 

were noticeably higher than the up-gradient concentrations. These constituents most often include 

manganese and nickel. Other parameters (including arsenic, cadmium, chromium, selenium, silver, and 

zinc) exceeded their MCL in down-gradient wells at only one of the sites. Although vanadium does not 

have an MCL, the parameter was found in ground water down-gradient of waste management units. 

At several of the sites reviewed, EPA found that the waste management unit very likely contributes to the 

contamination of constituents, such as manganese, nickel, and vanadium, into ground water. Brayton 

Point Station, as many of these sites, is located next to the ocean where such releases can be diluted and 

no drinking water wells would be located between the management unit and the surface water. EPA did 

not find any cases of drinking water contamination or other environmental damages resulting from these 

releases. Additionally, most or all unlined units are operated under state permit allowing exceedances of 

groundwater standards close to the management unit, but which must be met outside the zone of 

discharge. 

Resolution: EPA found that this unit very likely contributes to groundwater contamination. EPA did not 

find any cases of drinking water contamination or other environmental damages resulting from these 

releases. An Administrative Consent Order (ACO-BO-00-2002) was issued.

In 1996, New England Power notified MassDEP of elevated metals from an on-site landfill monitoring 

well. Through Massachusetts Contingency Plan site investigation and subsequent RCRA 2020 corrective 

action process, Dominion Power claims that the on-site and off-site risks to Human Health & the 

Environment associated with past oil ash and wastewater practices have been mitigated. 39 All current onsite management of oil ash, coal ash, and wastewater is conducted in lined basins and aboveground tanks 

and silos unless it is beneficially used.

Basis for Consideration as a Potential Damage Case: “This case has been categorized as a potential 

damage case for the following reasons: exceedance of one or more MCL standards down flow from the 

plant’s unlined wastewater treatment basins that does not impact drinking water wells offsite.”40

Rationale for Rejection: CCRs co-managed with oil combustion wastes.

References

EPA (2007): Coal Combustion Waste Damage Case Assessments, July 2007, Case #26, docket ID EPAHQ-RCRA-2006-0796-0015, (including a reference: Status of Alleged Damage Cases Submitted by HEC, 

et. al., to Dennis Ruddy, EPA/OSWER, February, 2002).

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

Technical Background Document for the Report to Congress (1999): Technical Background Document 

for the Report to Congress on Remaining Wastes from Fossil Fuel Combustion: Potential Damage Cases, 

March 15, 1999. Accessed Online February 2013.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/ffc2_397.pdf

 

38 From EPA (2007) and references therein.

39 Dominion’s comment to the 2011 NODA, ibid

40 EPA (2007).
III. CCR Rejected Damage Cases December 2014

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Brayton Point Administrative Consent Order (ACO-BO-00-2002, undated), Brayton Point Administrative 

Consent Order Timetable, August 22, 2006. 

EPRI (1998): Oil Combustion By-Products: Chemical Characteristics, Management Practices, and

Groundwater Effects. March 1998. Accessed Online December 2014.

http://www.epri.com/search/Pages/results.aspx?k=Oil%20Combustion%20ByProducts:%20Chemical%20Characteristics,%20Management%20Practices,%20and%20Groundwater%20

Effects

Brayton Point Draft NPDES (2002): US EPA Region I Fact Sheet, Draft National Pollutant Discharge 

Elimination System (NPDES) Permit to Discharge to Waters of the United States, NPDES Permit 

Number: MA0003654, July 2002. Accessed Online February 2013.

http://www.epa.gov/region1/braytonpoint/pdfs/Braytonfs.pdf

EPA Office of Water (2002): Case History Analysis for the Proposed Section 316(b) Phase II Existing 

Facilities Rule, Part F-G, EPA-821-R-02-002, USEPA Office of Water, May 2002. Accessed Online 

February 2013.

http://nepis.epa.gov/Exe/ZyNET.exe/20002RSX.txt?ZyActionD=ZyDocument&Client=EPA&Index=200

0%20Thru%202005&Docs=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&T

ocEntry=&QField=&QFieldYear=&QFieldMonth=&QFieldDay=&UseQField=&IntQFieldOp=0&ExtQ

FieldOp=0&XmlQuery=&File=D%3A%5CZYFILES%5CINDEX%20DATA%5C00THRU05%5CTXT

%5C00000005%5C20002RSX.txt&User=ANONYMOUS&Password=anonymous&SortMethod=h%7C-

&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display=p

%7Cf&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&Ma

ximumPages=1&ZyEntry=11

EPRI (2010): Evaluation of Coal Combustion Product Damage Cases, Volume 2: Site Information. EPRI 

1020554, Final Report, September 2010. Accessed Online August 2012. 

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%20

Product%20Damage%20Cases

The News Gazette (2011): EPA says it's monitoring coal ash sites. The News Gazette, Serving East 

Central Illinois, August 19, 2011. Accessed Online August 2014.

http://www.news-gazette.com/news/local/2011-08-19/epa-says-its-monitoring-coal-ash-sites.html

R06. Salem Acres Site, Salem, Essex County, Massachusetts 

Type: Landfill and Surface Impoundments.

Background and Description: The Salem Acres Superfund Site, located at 57 Marlborough Road, 

Salem, MA 01970, approximately one quarter mile west of Route 107 near the Salem and Peabody, 

Massachusetts Town line, comprises an area of 234 acres. The site is composed of unlined sludge lagoons

(impoundments) containing tannery wastes: sludge, grit, and grease from the South Essex Sewerage 

District (typical components include chromium and greases), contaminated soil areas, a landfill, a debris 

pile, and a fly ash pile. Wastes were disposed on four acres of the site from the mid-1940s to 1969. 

Fly ash disposal occurred at this site (in a landfill and an impoundment) between from at least 1952 and 

1969. The volume of fly ash is estimated to be 9,600 cubic yards; the volume of impoundment sludge is 
III. CCR Rejected Damage Cases December 2014

14

estimated to be 21,000 cubic yards. Therefore, the ash comprises a significant percentage of the overall 

waste volume present.41 Ground-water monitoring showed arsenic to be present below its MCL. The 

ROD concluded that several areas of the site, including the fly ash pile, pose health risks exceeding risk 

management criteria. Ground-water risks from antimony and manganese also were identified. 42 

Bedrock is overlain by recent marsh deposits (the area is surrounded to the north, east, and west by seven 

wetlands) and a veneer of glacial till. Overall, the overburden material is quite thin (averages about 9 

feet), varying from zero at bedrock outcrops, to more than 17 feet in the lowland areas adjacent to 

wetlands. Groundwater at the Site was monitored at seven locations in both overburden and bedrock 

wells. Groundwater flow in the overburden and in the bedrock aquifer apparently follows the same 

general pattern as the surface water with an east/west divide and a discharge into the surrounding 

wetlands. 

The sludge was placed in eight unlined, uncovered disposal pits. Polychlorinated biphenyls (PCBs), 

volatile and semi-volatile organic compounds, arsenic, and chromium were found to be present in the pits. 

In addition, there is a fly ash disposal area adjacent to the sludge impoundments and an old landfill area 

adjacent to the fly ash pile yielding a site total of 13 acres of contamination. Residential housing borders 

the site on the south and the east. Approximately 65,000 people live within 1 mile, and 127,000 people 

live within 3 miles of the site. One of the disposal pits is located approximately 20 feet from Strongwater 

Brook. The site lies on the divide of two drainage basins that channel both surface water and groundwater 

directly into two major aquifers.43

Impact: Groundwater, surface water and soil: arsenic, chromium, berylium,44 vanadium, antimony,45

thalium, PAHs, VOCs, and PCB.

Significant hazardous compounds identified at the Site include the following:46

1. Heavy Metals, including lead, arsenic, and chromium;

2. Volatile Organics (VOC), including xylenes and ethylbenzene;

3. Carcinogenic Polynuclear Aromatic Hydrocarbons (CPAH);

4. Non-Carcinogenic Polynuclear Aromatic Hydrocarbons;

5. Poly-chlorinated Biphenols (PCBs); and

6. Dioxins/Furans.

 

41 Although, according to EPRI (2010), fly ash was only reported over a small portion (0.6 acres) of this 234-acre 

site.

42 1999 RTC: http://www.epa.gov/waste/nonhaz/industrial/special/fossil/ffc2_397.pdf, page 3-5

43 Salem acres ROD (1993)

44 According to EPA Superfund Explanation (1997), the soil cleanup level for beryllium established in the ROD was 

based on a very limited (two samples) characterization of site background. The lower of the two background 

concentrations (0.42 ppm of beryllium) was used as the cleanup level. In an effort to better characterize naturally 

occurring levels of beryllium, twelve representative background samples were taken at various depths from 

undisturbed areas in close proximity to the site. The results show that beryllium is naturally present in the soils in 

concentrations that range from 0.50 ppm to 1.50 ppm, with an average concentration of 0.83 ppm. The 95% upper 

confidence limit calculated for the arithmetic mean of 0.83 ppm is 1 ppm. Given the variability in the data set, it is 

consistent with EPA practices to use the 95% upper confidence limit on the arithmetic mean (1ppm) as 

representative of naturally occurring (background) beryllium concentrations. Through the 1997 EPA Superfund 

Explanation, EPA redefined the background concentration of beryllium in soils as 1ppm, and replaced the former 

cleanup level for beryllium of 0.42 ppm with 1ppm for compliance purposes.

45 According to EPRI (2010), based on the 1993 USEPA ROD, the only metals exceedance of an MCL or SMCL in 

groundwater was for antimony, and in only 3 of 27 samples.

46 Ibid.
III. CCR Rejected Damage Cases December 2014

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Remediation: Remedial measures were taken based on RODS.47 Cleanup of the site was addressed in 

two stages: initial actions and a long-term remedial phase focusing on cleanup of the entire site. In 1987, 

impoundment water was removed and disposed of, the slurry wall at the disposal areas was capped and a 

fence was installed. In 1988, EPA covered the sludge pits with a high density polyethylene synthetic 

cap, removed the liquid wastes from the disposal pits to an off-site storage facility, and constructed 

concrete cutoff walls to prevent further releases into the wetlands. In 1990, repairs were made to a 

monitoring well and a security fence on site, and signs were posted to further restrict access. 

The South Essex Sewerage District completed an investigation into the nature and extent of the soil and 

sludge contamination in early 1993. The investigation defined the contaminants of concern and 

recommended alternatives for final cleanup. The primary contaminants of concern affecting the soil, 

debris, sludge, and surface water are volatile organic compounds (VOCs), including benzene and xylenes; 

other organics, including dioxins, polyaromatic hydrocarbons (PAHs), and PCBs; and metals, including 

arsenic, chromium, and lead. Ground water at the site and adjacent wetlands demonstrated only minor 

contamination and therefore, no further remedial actions were planned. EPA selected a final remedy for 

the site, including sludge fixation with fly ash and other substances such as cement and soil, as necessary 

and disposed of off-site to a secured landfill. A contingent remedy includes the installation of an EPA 

approved cap. In 1995, the fly ash area and “old landfill” on site were excavated and the contaminated 

material was taken off site to a municipal landfill. Final site restoration of these areas occurred in 1996. 

The sludge impoundment cleanup was completed in the fall of 1997 and final site restoration was 

completed in the spring of 1998. The site attained construction complete status in September 1999. 

Resolution: The damage was first detected in 1984. EPA proposed adding the Salem Acres site to the 

NPL on October 15, 1984, and added it to the final list on June 10, 1986. Between 1985 and 1992, EPA 

notified nine Potentially Responsible Parties (PRPs), and conducted two Emergency Removal Actions 

(ERA) at the Site, one in 1987 and one in 1990. On May 26, 1987, the EPA signed a Consent Order with 

the South Essex Sewerage District to have the District perform the studies to examine the nature and 

extent of contamination and present technical options for cleanup. In December 1993, the EPA signed a 

Consent Decree with the South Essex Sewerage District to clean up the impoundments. EPA also signed a 

separate Consent Decree with the Massachusetts Electric Company to clean up the fly ash pile on site. In 

October 1994, the EPA signed a Consent Order with DiBase Salem Realty Trust, the owner of the 

property and remaining potentially responsible party, to clean up the landfill and three debris piles. All 

three potentially responsible parties have fulfilled the requirements of their consent decrees. The site was 

deleted from the NPL on July 23, 2001,48 and future land use is unrestricted.

Evaluation against Proven Damage Criteria: This damage case as one of eleven damage cases cited 

in the May 2000 Regulatory Determination. EPA (2007) presents the following criteria as a basis for 

considering it as a proven damage case: (1) Scientific – Arsenic and chromium exceeded (health-based)

primary MCLs, and (2) Administrative – The site has been placed on the NPL list, and EPA signed a 

Consent Order with the owner to clean up the impoundments.”

Rationale for Rejection: Based on review of the ROD, EPA concluded that while risks associated with 

fly ash were identified, damages could not be linked to fly ash to the exclusion of other wastes present.49

 

47 http://cumulis.epa.gov/superrods/index.cfm?fuseaction=data.siterods&siteid=0100727. The remedial measures 

included capping, cut-off walls, excavation, treatment, removal of sludges and soils.

48http://yosemite.epa.gov/r1/npl_pad.nsf/f52fa5c31fa8f5c885256adc0050b631/C8A4A5BEC0121F048525691F006

3F6F3?OpenDocument

49 RTC (1999).
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EPA (2007, Table 1) recognized Salem Acres as a Non-Utility Coal Combustion Waste Site.50 Upon a 

recent reevaluation of the established damage cases, EPA determined51 that it is Not a Damage Case:

“The co-managed wastes contributed metal contamination indistinguishable from CCRs. Administrative 

orders do not contain explicit findings of specific damage from CCRs.” 

References

EPA (2007): 2007 Coal Combustion Waste Damage Case Assessments, July 2007, Case #1 (including a 

reference to Memorandum from SAIC to Dennis Ruddy regarding Additional Information Regarding 

Fossil Fuel Combustion Waste Damage Cases, April 20, 2000.)

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

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

Appendix A, Case #1. ICF, October 2010. 

Technical Background Document (1999): Technical Background Document for the Report to Congress on 

Remaining Wastes from Fossil Fuel Combustion: Potential Damage Cases, March 15, 1999. Accessed 

Online February 2013.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/ffc2_397.pdf

Salem acres ROD (1993): EPA Superfund Record of Decision: Salem Acres, EPA ID: MAD980525240 

OU 01, Salem, MA, 03/25/1993, EPA/ROD/R01-93/078, 1993. Accessed Online February 2013.

http://www.epa.gov/superfund/sites/rods/fulltext/r0193078.pdf

EPA Superfund Explanation (1997): EPA Superfund Explanation of Significant Differences: Salem 

Acres, EPA ID: MAD980525240, OU 01, Salem, MA, EPA/ESD/R01-97/165, 04/11/1997. Accessed 

Online February 2013. 

http://www.epa.gov/superfund/sites/rods/fulltext/e0197165.pdf

EPRI (2010): Evaluation of Coal Combustion Product Damage Cases, Volume 2: Site Information. EPRI 

1020554, Final Report, September 2010. Accessed Online August 2012. 

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%20

Product%20Damage%20Cases

R07. Vitale Fly Ash Pit, Beverly, Essex County, Massachusetts

Type: Sand and Gravel Pits.

Background and Description: The Vitale Fly Ash Pit is located off LP Henderson Road, Beverly,

Massachusetts, about 1,500 feet east from the Beverly airport and about half-a-mile west of Wenham 

Lake. The Lake serves as one of the water supply sources of the communities of Salem, Beverly and 

Wenham.52 This abandoned gravel and sand pit, mined between the 1940s and the 1950s, was used as an 

unpermitted landfill between the 1950’s and the mid-1970s.53 The Vitale Brothers, the site owners until 

 

50 CCW Damage Case Assessment Report (2007), Case #1: ”Contribution of FFC wastes to damage not separable 

from other wastes.”

51 ICF (2010), Appendix A, P. 1.

52 The Boston Globe (2007).

53 “Under MGL Chapter 111, subsection 150A, coal fly ash is recognized by the Commonwealth of Massachusetts 

as an acceptable fill material and is not considered to be waste. In addition, under the MCP, releases related to coal 
III. CCR Rejected Damage Cases December 2014

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1980,54 accepted and disposed saltwater-quenched fly ash from New England Power Company’s Salem 

Harbor power station along with other wastes. It is estimated that the site contains some 300,000 cubic 

yards of fly ash.55 Leaking underground storage tanks containing petroleum products were also located at 

the site,56 as well as miscellaneous construction and demolition debris.57 For detailed site description, 

monitoring well analytical data, and remediation alternatives, see Land and Schlictmann (2004).

Impact:

58 Fly ash was disposed at the site at depths from 14 to 36 feet. Not only is the site unlined, but 

ground water depth at the site is between 10 and 21 feet, indicating the likelihood of direct contact with 

fly ash. Fly ash also was observed to be present at the surface of the site with no cover or other surface

runoff, erosion, or fugitive dust controls. 

In 1973, fly ash at the site eroded into a nearby swamp and the Airport Brook, a stream that is a tributary 

to Wenham Lake, a surface drinking water supply. The erosion created a damming effect and resulted in 

flooding of neighboring property, including the nearby Route 97.59 Over the years, Airport Brook, which 

ran through the site, eroded approximately 40,000 cubic yards of fly ash from the landfill. The eroded fly 

ash was carried downstream and deposited within the stream banks and adjacent wetlands, as well as a 

portion of Wenham Lake. The erosion of fly ash from the Vitale site buried the downstream wetlands 

under 1 to 3 feet of ash. The fly ash reduced the health and diversity of the wetlands as invasive species 

such as common reed (Phragmites australis) and purple loosestrife (Lythrum salicaria) invaded large 

portions of the wetlands. The dominance of invasive species also reduced the wetlands’ ability to support 

a diversity of wildlife species.60

In 1988, surface water sampling of the stream revealed levels of iron and manganese significantly greater 

than upstream levels. Finally, 1988 groundwater sampling found arsenic and selenium in excess of their

 

fly ash are exempt from notification requirements, as per 310 CMR 40.0317(9)”, citation from 

http://public.dep.state.ma.us/fileviewer/DefaultScanned.aspx?documentid=14938, Section 1-02.A, page 2.

54 In 1980, the City of Beverly Conservation Commission gained ownership because of failure to pay property taxes. 

According to Land and Schlictmann (ibid), however, the City took ownership of the site in 1987.

55 http://www.salemnews.com/local/x1150885693/Notorious-pit-transformed-into-miracle-park/print

56 Normandeau Associates (1986).

57 Haley & Aldrich (2006). According to Land and Schlictmann (ibid), discarded roofing material, asbestos siding, 

household appliances, car bodies and empty steel drums were also reported to have been disposed of at the Site 

during the Vitale’s and City’s ownership.

58 Groundwater, surface water and sediment were impacted. According to Cherry et al., (2000), this site has six 

constituents that surpassed federal limits in down-gradient monitoring wells. Manganese (8.9 mg/L) and iron (98.6 

mg/L) exceeded the SMCL and MCL by 178 and 328 times, respectively. Sodium (583 mg/L) exceeded the MCL by 

11 times. Aluminum (3,000μg/L) surpassed the MCL by 15 times and the US EPA chronic WQC by 34 times. 

Selenium (57μg/L) surpassed the chronic WQC limit by 11 times, while arsenic (191μg/L) exceeded the MCL by ~4 

times (note that in 2000, the arsenic MCL was 50μg/L; it has been since revised to10 μg/L). According to Land and 

Schlictmann (ibid), arsenic concentrations in ground water at the up-gradient wells on the property were measured at 

6μg/L while downgradient wells contained arsenic at 386μg/L.

59 Brownstein and Lotti (2006).

60 In addition, there were complaints of fugitive dust from the site from neighbors located 500 feet away. Air 

sampling on one occasion in 1988 revealed arsenic concentrations of 2 parts per billion.
III. CCR Rejected Damage Cases December 2014

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primary MCLs and aluminum, iron, and manganese in excess of secondary MCLs.61, 62 According to the 

State, fly ash is the suspected source of contamination in all of these media. 

Resolution/Remediation: The site has a long history of noncompliance with local and State laws and 

regulations. Pre-remedial activities (including Discovery, Preliminary Assessment and Screening Site 

Inspection) took place between April 1985 and April 1990.63 Following the completion of a 

Comprehensive Site Assessment and Risk Characterization in preparation for potential remedial action 

under Massachusetts regulations for the assessment and cleanup of hazardous waste sites, the fly ash was 

removed64 and the site was redesigned with special attention to protecting the adjacent water courses from 

erosion.65 The Vitale Fly Ash site submitted a site closure report on February 1, 2007, and a preliminary 

screening of the site closure report was granted later that year. In October 2007, the site was converted 

into Birch Plains Park, an expanse of green soccer fields.66

Evaluation against Proven Damage Criteria: “Basis for Consideration as a Proven Damage Case: 

This case was not counted as a proven damage case in the 1999 Regulatory Determination because it was 

a case of illegal disposal not representative of historical or current disposal practices. The case, however, 

otherwise meets the criteria for a proven damage case for the following reasons: (1) Scientific – (i) 

selenium and arsenic exceeded (health-based) primary MCLs, and (ii) there is evidence of contamination 

of nearby wetlands and surface waters; and (2) Administrative - the facility was the subject of several 

citations and the State has enforced remedial actions.”67

Rationale for Rejection: A recent reevaluation68 determined that this is Not a Damage Case: “NonCCR wastes primarily underground- storage tanks (USTs) were focus of MADEP remediation; No 

indication of offsite migration in groundwater of CCR specific contaminants; No explicit finding of 

specific damage due to CCRs in Administrative Orders which were limited to USTs.”

 

61 According to Land and Schlictmann (ibid), Based on stream discharge and piezometer monitoring results from 

Haley and Aldrich (Draft Data Report Vitale Fly ash Site Beverly MA RTN 3-20895, February 2004), Airport Brook 

is a losing stream, at least throughout most of the periods between May and September of 2001 and 2002. As a 

result, this allows the surface water to infiltrate downward into the groundwater flow system. Any metals or organic 

chemicals present in Airport Brook would be available to enter groundwater.

62 According to EPRI (2010), “A Wenham Lake Watershed Association 2001 PowerPoint presentation to the Salem 

City Council indicated that the highest concentrations for various metals detected by the water filtration plant (as 

reported by the Salem and Beverly Water Supply Board through 1999) and in samples collected in the lake near the

fly ash deposits were below the USEPA primary and secondary MCLs for all constituents except iron and 

manganese. Since there are other sources of contamination in the watershed, the source of iron and manganese is 

uncertain.”

63 http://public.dep.state.ma.us/fileviewer/DefaultScanned.aspx?documentid=14804, virtual page 85.

64 The cleanup was funded by National Grid, the current owner of the Salem Harbor power plant. 

65 “Workers began to clean the site in 2005, flattening 40-foot-high mounds of black fly ash that covered the 15-

acre landfill. Once flattened, the fly ash was capped with a quarter-inch-thick fabric, another 12 inches of sand and 

then 6 inches of loam. The site has been seeded, and will contain two athletic fields, a parking lot, and a bathroom 

facility. Workers also rerouted the brook away from the landfill so it could no longer carry fly ash toward the 

drinking water supply. Using a backhoe and other construction machinery, they pulled 40,000 cubic yards of fly ash 

from the (Airport) brook, Wenham Lake, and from 16 acres of wetlands. In addition, 52,000 new plants were 

included in the wetlands restoration.” (The Boston Globe, ibid).

66 http://www.salemnews.com/local/x1150885693/Notorious-pit-transformed-into-miracle-park/print

67 EPA (2007).

68 ICF (10/2010, Appendix A, P. 2).
III. CCR Rejected Damage Cases December 2014

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References

EPA (2007): Coal Combustion Waste Damage Case Assessments, July 2007, Case #2 (including a 

reference to a Memorandum from SAIC to Dennis Ruddy regarding Review of Causative Factors for Coal 

Combustion Waste Damage Cases, November 29, 2000.)

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

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

Appendix A, Case #2. ICF, October 2010. 

Normandeau Associates (1986): Environmental Quality Assessment of the Beverly Airport/Wenham 

Lake Watershed, beverly, Massachusetts, Phase I Report, R-323, August 1986. Accessed Online February 

2013.

http://public.dep.state.ma.us/fileviewer/DefaultScanned.aspx?documentid=21153

Cherry et al., (2000): Review of the Global Adverse Environmental Impacts to Ground Water and 

Aquatic Ecosystems from Coal Combustion Wastes. Donald S. Cherry, Rebecca J. Currie, and

David J. Soucek, Biology Department, Virginia Tech., Blacksburg, Virginia, prepared for Hoosier 

Environmental Council and Citizens Coal Council, Indianapolis, Indiana, March 28, 2000. Accessed 

Online February 2013.

http://www.citizenscoalcouncil.org/wp-content/uploads/2012/07/A-REVIEW-OF-THE-ADVERSEENVIRONMENTAL-IMPACTS-OF-COAL-COMBUS.htm

Land and Schlictmann (2004): Leaching of Arsenic from a Fly Ash Dump in Beverly, Massachusetts,

David J. Lang and Jan R. Schlictmann, Esq., pages 114-122 in Proceedings of State Regulation of

Coal Combustion By-Product Placement at Mine Sites: A Technical Interactive Forum, Wyndham Hotel, 

Harrisburg, Pennsylvania, May 4-6, 2004. Proceedings Published by U.S. Department of the Interior, 

Office of Surface Mining and Coal Research Center, Southern Illinois University Carbondale. Accessed 

Online February 2013.

http://www.mcrcc.osmre.gov/MCR/Resources/ccb/PDF/State_Regulation_of_CCB_Placement.pdf

Haley & Aldrich (2006): A Release Notification for Lead in Soil, Vitale Site, Letter to the Massachusetts 

Department of Environmental Protection, on behalf of the City of Beverly, Massachusetts, 17 March, 

2006. Accessed Online February 2013.

http://public.dep.state.ma.us/fileviewer/DefaultScanned.aspx?documentid=14948

Brownstein and Lotti (2006): Erosion Control by Design: A critical need to control erosion drove design 

and construction on this fly ash cleanup project, Mark D. Brownstein and Michael S. Lotti, Erosion

Control, February 28, 2006. Accessed Online February 2013.

http://www.erosioncontrol.com/EC/Articles/Erosion_Control_By_Design_893.aspx

The Boston Globe (2007): Park's naming holds a lesson. The Boston Globe, January 7, 2007. Accessed 

Online August 2014.

http://www.boston.com/news/local/articles/2007/01/07/parks_naming_holds_a_lesson/

EPRI (2010): Evaluation of Coal Combustion Product Damage Cases, Volume 2: Site Information. EPRI 

1020554, Final Report, September 2010. Accessed Online August 2012. 

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%20

Product%20Damage%20Cases
III. CCR Rejected Damage Cases December 2014

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R08. Arizona Public Service (APS)69 Four Corners Power Plant, Fruitland, San Juan 

County, New Mexico

Type: Surface Impoundments, Landfill and a Minefill. 

Background and Description: The Four Corners Power Plant (FCPP), operating since 1963, is a minemouth power plant70 located on Navajo Land approximately 20 miles west of Farmington, New Mexico, 

and about 13 miles southeast of Shiprock, New Mexico. Up to the end of December 2013, the FCPP was 

a 2,100 MW, five-generation unit plant, which produced annually around two million tons of fly ash, 

bottom ash and scrubber sludge. CCRs from (the now closed) generation Units 1, 2 and 3 were sluiced 

into surface impoundments on site, while CCRs from generation Units 4 and 5 are disposed of in a 

landfill and until 2008 were backfilled into unlined strip mining pits of the Navajo Mine.71, 72, 73 Most of 

 

69 The Plant is owned by APS and five other utilities in the Southwest: Southern California Edison, Public Service of 

New Mexico, Salt River Project, El Paso Electric and Tucson Electric Power 

http://durangoherald.com/article/20121005/NEWS01/121009678/Four-Corners-Power-Plant-to-shut-down-3-units.

70 Units 1, 2, and 3 have a combined generating capacity of 560 MW while Units 4 and 5 have a generating capacity 

of 770 MW each. Units 1 and 2 were completed in 1963, Unit 3 - in 1964, Unit 4 - in 1969, and Unit 5 - in 1970. In 

November 2010, APS announced its intent to purchase SCE’s share of generation Units 4 and 5, add air pollution 

control systems to these units, and shutdown generation Units 1, 2, and 3. Following the shutdown of generation

Units 1 through 3 at the end of 2013, FCPP’s generation capacity diminished to 1,540 MW. APS closes 3 units at 4 

Corners power plant, The Republic/azcentral.com, Dec. 30, 2013:

http://www.azcentral.com/business/consumer/articles/20131230aps-closes-units-corners-power-plant.html; aps 

completes purchase at four corners power plant, APS, December 31, 2013:

http://www.aps.com/en/ourcompany/news/latestnews/Pages/aps-completes-purchase-at-four-corners-powerplant.aspx

71 EPA Navajo Minefill Site Visit (2001).

72 Prior to the closing of generation units 1-3, the plant burned annually about 8.5 million tons of sub-bituminous 

coal, mostly delivered from the nearby Navajo Coal Mine by the Navajo Mine Railroad. Closing the three older 

units reduced the coal needed from the mine by about 30 percent. According to OSMRE (2012, Chapter 1), the 

Navajo Mine is located 18.6 miles southwest of Farmington, New Mexico, on a contiguous lease within the 

northeastern portion of the Navajo Nation. The Navajo Mine (with Mine permit area of 24,211 acres, divided into 

five Permit Areas: I-V) has been supplying coal to the plant since 1968. BHP Navajo Coal Company (BNCC) is 

currently conducting surface coal mining operations, including reclamation, in Permit Areas I, II and III. 

Concurrently with the closure of units 1-3, BNCC, which previously owned the coal mine next to the plant, 

transferred the mine to the Navajo Transitional Energy Co., which was formed by the tribe to own the mine and 

other entities. BNCC will continue to manage the mine through 2016 on behalf of the tribe. According to Norwest 

Applied Hydrology (2007) and OSMRE (2012, Chapter 5), CCRs from generation Units 4 and 5 have been placed in 

mine pit backfills at Navajo Mine since 1971, prior to the promulgation of regulations under the Surface mining 

Control and Reclamation Act (SMCRA) of 1977. CCRs were minefilled at a rate of about 1.6 million tons annually 

(about 3 percent of the total volume of backfill material, with the difference being overburden and interburden 

material removed during mining of the coal), until the cessation of this practice in 2008. According to EPA Navajo 

Minefill Site Visit (2001), in 2001 the Dobi Pit (Permit Area I) was “the only pit on site receiving ash. Future pits to 

be used for placement of CCW are the Pinto and South Barber pits (Permit Areas I and II of the Navajo Mine area, 

respectively). South Barber is a very large pit about 200 feet deep and 8,000 feet in length and is estimated to be the 

site of 75 to 80 percent of all future ash-placement at the mine. It is expected that it will take 20 years of continuous 

ash placement to fill this pit to capacity.” The placement of CCR as a backfill in the Bitsui and Watson pits (at the 

northernmost portion of Permit Area I) also preceded the Navajo Agricultural Products Industry (NAPI) irrigation 

activities, which began further east in the area around 1980. See Figures 17 and 25 in OSMRE (2012, Chapters 4 

and 5, respectively) for the locations of CCR backfilling pits, and Fig. 2-1 in OSMRE DEIS, 2014 for the location of 

the coal mining pits in reference to the FCPP.

73 In July 2012, the Office of Surface Mining, Reclamation and Enforcement (OSMRE) announced plans to 

undertake a single “Environmental Impact Statement and Endangered Species Act” consultation for the entire mineto-mouth coal complex at the FCPP. The EIS will analyze, among others, the impacts of implementing the following 
III. CCR Rejected Damage Cases December 2014

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the bottom ash (with the exception of bottom ash generated in Units 4 and 5 which was backfilled into the 

mine pit74) was used by the FCPP in the construction of embankments for future Lined Ash Impoundment 

(LAI) expansions and in the recent years up to 30 percent of the fly ash generated from Units 4 and 5 has 

been sold for beneficial reuse.75

APS has disposed of approximately 55 million tons of CCR over 230 acres.76 The FCPP site contains six, 

now inactive unlined impoundments,77 a new, active Lined Ash Impoundment (LAI),78 an active Lined 

 

actions: (i) Approval of Navajo Mine’s application for a new Surface Mining Control and Reclamation Act (SMCRA) permit for 

the Pinabete Permit Area, which is located within the existing Navajo Mine Lease Area, to begin operations in 2016 and continue 

through 2041 in 5-year permit renewal Intervals; and (ii) Renewal of Navajo Mine’s existing SMCRA permit for Areas I, II, III, 

and portions of Area IV North of the Navajo Mine Lease Area for 5 years beginning in 2014. The draft EIS was completed in 

March 2014 (OSMRE DEIS, 2014): http://www.wrcc.osmre.gov/initiatives/fourCorners/documentLibrary.shtm

74 EPA Navajo Minefill Site Visit (2001). 

75 USWAG (2008); APS (2009). According to OSMRE DEIS (2014), Section 2.2.6.3, an average of 240,000 tons per year of the 

fly ash is beneficially used, which represents approximately 20 percent of the total fly ash generated.

76 EarthJustice’s Comment to the 2007 NODA docket: EPA-HQ-RCRA-2006-0796-0446, Document No. 4. According to 

OSMRE DEIS (2014), Section 2.2.6.1, “from 1962 to the present, approximately 33.5 million tons, or 20,800 acre-feet, of fly 

ash, bottom ash, and FGD solids have been placed into the Ash Disposal Area.” Considering that until 2008 about 50 percent of 

the CCRs produced in FCPP were placed in strip coal mining pits, the 55 million tons cited above most probably refer to the total

CCRs produced since the plant’s inception up to May 2007, when this information was provided by APS. 

According to OSMRE DEIS (2014), Section 2.2.6.1, Units 1, 2, and 3 ash/FGD waste slurry (FGD: since 1979, when 

the Venturi particulate scrubbers on Units 1, 2, and 3 were retrofitted to remove SO2) historically was sluiced to impoundments in 

the Ash Disposal Area located approximately 1 mile west of the power plant. Prior to 2008, ash and FGD wastes generated by 

Units 4 and 5 were hauled to the adjacent mine for placement in mined-out areas regulated by the OSMRE. Since 2008, fly ash 

generated by Units 4 and 5 has been trucked to a lined Dry Fly Ash Disposal Area (DFADA) located within the onsite Ash 

Disposal Area. FGD slurry from Units 4 and 5 scrubbers is pumped to thickeners. The thickeners underflow is pumped to the 

Lined Ash Impoundment in the Ash Disposal Area where the solids settle and the liquid is decanted to the LDWI. The liquid is 

pumped back to the scrubbers for reuse, and the bottom ash is trucked to the DFADA.

77 According to OSMRE DEIS (2014), Section 2.2.6.2, Ash Ponds 1 and 2 were constructed in the 1960s by erecting a dike on 

existing ground downstream from the power plant. Ash slurry was allowed to flow through existing washes until it was captured

by the dike. The ash ponds were not lined and contain an average depth of approximately 24 feet of ash. Ash Ponds 1 and 2 were 

taken out of service when Ash Pond 3 was constructed in 1976.

In the late 1970s, Evaporation Ponds 1 through 4 were constructed on top of Ash Ponds 1 and 2. The evaporation ponds 

were constructed with a single liner of 20 mil high-density polyethylene (HDPE) and a 1-foot layer of earth and gravel fill placed 

over the liner on the sides of the ponds. The evaporation ponds were used for storage of seepage intercept water, runoff, and other 

industrial water from the FCPP. FCPP began phasing out the use of the evaporation ponds in 2001. The evaporation ponds have 

not been in use since October 2011 and have since been reclaimed.

According to EarthJustice (ibid), impoundments Nos. 3, 4 and 5, originally unlined settling ponds, were used since the 

beginning of the FCPP’s operation. Ash Ponds 3, 4, and 5 are currently inactive and were used as an impoundment for the fly ash 

and FGD solids from Units 1, 2, and 3. The west embankment of Ash Pond 3 is the tallest of all embankments surrounding the 

pond, approximately 80 feet higher than natural grade. Water was decanted from impoundments Nos. 3, 4, and 5 and discharged 

to an arroyo draining to the Chaco Wash. Construction of the unlined impoundment No. 6 began in 1987, and its use ceased in 

2005. Impoundment banks were constructed using ash covered with compacted shale on the upstream face to minimize flowthrough. This compacted shale was keyed into low-permeable soil at the base of the bank. Water was decanted from the top of the 

impoundment back to the power plant for reuse. Impoundment No. 6 is surrounded by a French drain trench, designed to capture 

seepage prior to its migration to the Chaco Wash by having it rerouted off site back to the Chinde Wash. According to EPA 

Navajo Minefill Site Visit (2001), once the then (2001) active ash pond would have reached 80 feet in height it would be 

reclaimed and covered. The inactive ash ponds are sometimes used for overflow. The surfaces of inactive (full) ash ponds are 

dotted with salt-tolerant, wild “brush.”

78 According to APS (2009), the LAI (75 acres; capacity: 3,870,000 cubic yard) was constructed in 2003 on top of the old 

impoundments Nos. 3 and 4. The LAI’s dikes are constructed of compacted clay material on the liquid side and out of dewatered 

bottom ash on the outer side. The dikes are built on top of the clay dikes used for old ash impoundments Nos. 3 and 4, and the 

LAI is composite-lined (according to GEI, 2009, a 15 feet-thick clay liner with permeability of 3.5 x 10-6cm/sec, and a 60 mil 

HDPE membrane with permeability of 3.5 x 10-14 cm/sec). 
III. CCR Rejected Damage Cases December 2014

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Decant Water Impoundment (LDWI),79 and a dry fly ash disposal landfill.80 The FCPP is located south of 

Morgan Lake,81 and is flanked on the west by the inactive ponds, the LAI and LDWI, four (no longer 

active) evaporation ponds and by the Dry Fly Ash Disposal Area (DFADA).82 

The geologic units in the FCPP and the Navajo Mine areas are Upper Cretaceous-age formations (in 

ascending order): (i) The Cliff House Sandstone (several tens of feet-thick transgressive marginal-marine 

sandstone and shale that grades laterally and vertically into the Lewis Shale). (ii) The Lewis Shale 

(several tens of feet-thick off-shore deposits of shale with streaks of fine-grained sandstone, siltstone, and 

limestone);83 (iii) The Picture Cliff Sandstone (PCS, nearly 120 feet thick in the mine and adjacent areas; 

beach and nearshore sandstone); (iv) The Fruitland Formation (generally less than 300 feet-thick coal 

 

79 According to APS (2009), the Lined Decant Water Impoundment (LDWI, 45.1 Acres; capacity: 43.5 acre-feet) 

was constructed in 2003 on top of an old (No. 3) ash impoundment. The LDWI's dikes are constructed of compacted 

clay material. The LDWI is constructed with two 60 Mil HDPE liner layers (HDPE membrane’s permeability is 3.5 

x 10-14 cm/sec) that encompass the entire impoundment area, including the dikes, with an intervening clay layer 

(with permeability of 3.5 x 10-6cm/sec). The second HDPE liner barrier also includes a leak detection system. The 

LDWI contains no solid ash material and is not an ash management unit.

The Upper Retention Sump (1.07 acres; capacity: 17,265 cubic yards) is a compacted soil cement basin 

constructed below grade in 1984 as part of the generating Units 4 and 5 S02 scrubber system. It is used for 

temporary surge capacity of CCR and FGD materials from the normal waste disposal processes of the scrubbers.

The Low Volume Waste Water System Decant Cells (0.63 acres; capacity: 6,419 cubic yards) were 

constructed below grade in 2004 with engineered fill (bottom ash placed on top of clay material). Each of the three 

cells contains floor drains to decant water from the solids contained in the plant's low volume waste water system 

prior to the water entering the Low Volume Waste Water Pond. 

Finally, the Low Volume Waste Water Pond (13.7 acres; capacity: 221,000 cubic yards) was commissioned 

in 1979 as a below grade water treatment pond. The pond allows solids in the water to settle, for later dredging prior 

to the water flowing back into the plant's cooling lake. For a summary of the history and functions of the wet 

disposal units, see OSMRE DEIS (2014). Table 4.15-4.

80 According to APS (2009), CCRs generated in the FCPP is subjected to two different collection and treatment 

trains: (i) the fly ash from generating Units 1, 2, and 3, as well as S02 from generating Units 4 and 5 are collected by 

venturi scrubbers (a wet particulate/S02 removal system), slurried to thickener equipment for fly ash and FGD 

material concentration (water reduction), and then pumped to the plant's LAI for dewatering. The decanted water 

flows by gravity through a filter built into the LAI, and then into the LDWI. (ii) The fly ash from generating Units 4 

and 5 is collected by fabric filters (dry collection) and is disposed of dry at a lined fly ash landfill.

The 40 acre composite lined (clay/shale, synthetic) fly ash dry disposal landfill (DFADA) was completed in 

November 2007 for fly ash from Units 4-5 that is not sold for reuse (USWAG, 2008). According to OSMRE DEIS 

(2014), Section 2.2.6.2, The DFADA Site 1 is tallest on its western berm at approximately 110 feet above natural 

grade. Both DFADA Sites 1 and 2 have composite liner systems consisting of compacted clay liner and a 60 mil 

HDPE liner. Both sites are projected to reach capacity by 2016.

81 FCPP is cooled using water from Morgan Lake, which is replenished daily the San Juan River, about 2.5 miles 

away. According to OSMRE DEIS (2014), Section 2.2.4, pumping from the San Juan River ranges between 17,000 

gallons per minute (gpm), (October to May time-frame) and 32,000 gpm (during the May through October timeframe), amounts driven primarily by the evaporation rate of the Lake.

Built in 1961, Morgan Lake is a manmade reservoir and perennial surface water body, west of Navajo Mine Permit 

Area I, constructed to supply water to mining and power generation activities in the area (including dust suppression 

and reclamation irrigation activities associated with the BNCC Lease). Approximately 1.2 miles wide and 2.2 miles 

long, over 1200-acre in area and with a maximum depth of about 100 feet, Morgan Lake has a volume of about 

39,200 acre-feet of water at normal storage and 42,800 acre-feet of water at maximum storage. Morgan Lake is 

designated for the following uses by the Navajo Nation EPA (NNEPA): livestock watering, aquatic and wildlife 

habitat, secondary and primary human contact (windsurfing and boating), and fish consumption. See OSMRE 

(2012), Chapter 4, and http://en.wikipedia.org/wiki/Four_Corners_Generating_Station.

82 For the layout of FCPP’s existing and proposed CCR disposal units, see OSMRE DEIS (2014), Figs. 3-2 and 3-5. 

83 The FCPP ash ponds are built upon the Lewis Shale. According to OSMRE DEIS (2014), the shale contains 

soluble constituents that tend to leach relatively high levels of total dissolved solids. Such composition, however, is 

not corroborated by e.g., Fassett (2000) and Dubiel (2013).
III. CCR Rejected Damage Cases December 2014

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swamp deposits, coal lenses with intervening shale), and (v) The Kirkland Shale (fluvial and lacustrine 

sandstones). The PCS overlies and inter-tongues with the Lewis Shale and underlies and inter-tongues 

with the Fruitland Formation. The contact between the Lewis Shale and the PCS is gradational, an 

expression of the temporal migration of depositional facies.84 All the bedrock formations are overlain by 

Quaternary-age, unconsolidated alluvial deposits in the valleys of the San Juan River and its tributaries 

(the Chaco River, and the Chinde, Bitsui, Cottonwood, Ojo Amarillio, Gallegos Canyon, Pinabete, and 

No Name Arroyos). Fine-grained surficial deposits in the FCPP’s immediate area are a residual soil of the 

weathered near-surface strata of the Lewis Shale.85

The FCPP is located close the western edge of the asymmetrical, almost circular, northwest trending San 

Juan structural Basin.86 The geologic formations dip gently to the east toward the center of the basin at an 

angle of one to two degrees and steepen toward the outcrop areas of the Hogback, a monocline formed by 

steeply east-dipping Cliff House Sandstone.87 The Hogback is the dominant tectonic feature in the area 

and constitutes the northwest margin of the San Juan Basin.88 The impoundments area is located about 

8,500 feet east of the Hogback. The south-north flowing Chaco Wash is located between the Hogback and 

the FCPP’s impoundments. 

The PCS is water bearing throughout most of the Navajo Mine Permit area.89 Selected coal-bearing strata 

of the Fruitland Formation were also found to be marginally wet within the permit area. However, neither 

the coal seams nor the Fruitland Formation itself are considered significant as a groundwater resource 

because of their poor aquifer characteristics and water quality.90 The general regional groundwater flow 

 

84 These units record a complex history of transgressive and regressive migrations of the Upper Cretaceous shoreline 

in the area of the present-day San Juan Basin: Siemers and King (1974), Figure 2, and Myers and Villanueva (1986).

85 Ibid and GEI (2009). See Fig. 2-2 in OSMRE DEIS (2014) for a stratigraphic cross section of the San Juan Basin.

86 The San Juan Basin is the second largest gas-producing basin in the United States: 

http://www.searchanddiscovery.com/documents/2010/10254fassett/ndx_fassett.pdf

87 http://3dparks.wr.usgs.gov/coloradoplateau/lexicon/mesaverde_cliffhouse.htm

88 For the location of the FCPP with respect to the Navajo Mine and key geologic features, see Map 1 in Norwest 

Applied Hydrology (2007), and for location, mining, and regulatory aspects of the Navajo Mine and lease, see 

narrative and map in BNCC Area IV North Mine Plan Revision Environmental Assessment, 

http://www.wrcc.osmre.gov/Current_Initiatives/Navajo_Mine/AreaIVN/Final-EA/Chapter1.pdf.

89 According to OSMRE Navajo Mine Permit (No date), Chapter 6 and OSMRE DEIS (2014), Section 4.5.2.1, the 

well-cemented PCS has low primary permeability, although secondary permeability is prevalent due to small-scale 

fracturing. The permeability of this formation ranges between 0.032 foot/day (or 1.1 x 10-5 cm/sec) to 0.0001 

foot/day (or 3.5 x 10-8 cm/sec) and averages 0.0015 ft/day (or 5.2 x 10-7 cm/sec). In general, the flow direction of 

groundwater in the PCS is toward the north-northeast, while local potentiometric gradients exist toward the 

topographic lows along No Name, Pinabete, and Cottonwood arroyos. The PCS contains poor quality, sodium 

sulfate water type with high concentrations of chloride and abundant hydrogen sulfide gas. Generally, water quality 

increases toward the outcrop- or recharge-areas and quickly decreases down dip to near connate conditions. Within 

close proximity to the Navajo Mine area, the water quality of the Pictured Cliffs varies significantly: TDS ranges 

between 5,200mg/L to 16,960mg/L (Myers and Villanueva, 1986, cite a calculated TDS range of about 2,200 to 

6,800 mg/L, derived from measured specific conductance in nine observation wells spanning the surface-mineable 

belt of the San Juan coals); chloride: 170 mg/L to 9,000 mg/L; sodium: 1,330 mg/L to 6,100mg/L; sulfate: 1,100

mg/L to 4,750 mg/L; and pH: 6.8 to 9.1.

90 According to OSMRE DEIS (2014), Section 4.5.2, the permeability of the Fruitland Formation ranges between 

0.001 foot/day (or 3.5 x 10-7 cm/sec) to 0.00013 foot/day (or 4.5 x 10-8 cm/sec). Groundwater production within the 

Fruitland Formation is limited. The majority of exploratory drill holes within the Navajo Mine Lease Area have not 

produced measurable groundwater during drilling, and measurable water was only encountered at a few locations. 

The general flow direction of groundwater in the Fruitland Formation is downward through the interbedded shale 

and coal units to the lower strata of the Fruitland Formation, with marginal upward movement from the PCS into the 

Fruitland Formation. We infer from the vertical flow directions that fracture flow might play a prominent role in the 

movement of bedrock groundwater in the FCPP area (e.g., Wilson, T.H. et al., 2012; McCord, J. et al., 1992, and 

Haerer and McPherson, 2008), a parameter totally neglected in the groundwater modeling of the FCPP area. 
III. CCR Rejected Damage Cases December 2014

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direction in the Quaternary deposits of the alluvial aquifer is from the topographically elevated 

agricultural areas (NAPI) in the east towards the west and towards the adjacent major dissecting arroyos 

north and south. For instance, springs and seeps along the upper Chinde Wash, above the mine lease 

boundary, are the result of NAPI irrigation return flows migrating downward through permeable eolian 

sand that underlies much of the irrigated fields, then migrating laterally along the contact of 

unconsolidated eolian sand and impermeable bedrock and discharging into the wash. 

Groundwater was only observed in the Quaternary alluvial deposits within the stream channels of the 

Chaco Wash and the Chinde and Cottonwood Arroyos.91, 92 More recent studies have also sampled 

alluvial aquifer water in the Pinabete and No Name arroyos.93 EIP (2010) claims that groundwater from 

the Navajo Mine and ash-disposal areas in Cretaceous bedrock flow west into Quaternary alluvium of the 

Chaco River (Wash) valley.

A geochemical analysis to characterize the signature of the precipitation- and NAPI irrigation return flows 

in the Bitsui, Chinde, and Cottonwood Washes, shows very few exceedances associated with high 

precipitation events.94 Apparently, the irrigation overflow return waters from the three washes are similar 

because they initially contain very little dissolved salts and have reached equilibrium with the salts in the 

soils in the watersheds and the sediments in their watercourses. The source of the NAPI irrigation water is 

 

According to Myers and Villanueva (1986), the calculated TDS of the Fruitland Formation (derived from measured 

specific conductance in nine observation wells spanning the surface-mineable belt of the San Juan coals) ranges 

between approximately 1,200 to 8,500 mg/L, and the dominant cation is sodium. The dominant anion varies 

between bicarbonate for the lower salinity samples (i.e., those with specific conductances of less than 5,000 

microsiemens) and chloride (in one case, sulfate) for the higher salinity water (i.e., samples with specific 

conductances greater than 5,000 microsiemens). Elsewhere in the southern San Juan Basin, Kaiser et al., (1994)

report coal water brines in the Fruitland Formation with TDS contents as high as 14,000 to 42,000 mg/L and 

chlorinities of 8,000 to 26,000 mg/L. They interpreted these brines as connate formational fluids of seawater origin. 

Zimmerman (2005) attributes these extremely high salinities to deep (3,000 feet or greater), structurally trapped, 

stagnant coal-bed methane production wells’ groundwater in the central part of the San Juan Basin and cites USGSgenerated average TDS for 30 Fruitland Formation wells across the entire San Juan Basin as merely 2,345 mg/L. 

91 According to OSMRE Navajo Mine Permit (No date, Chapter 6), the direction of the groundwater flow gradient in 

the 10-15 feet thick alluvial formations is generally towards the topographic low areas in the adjacent washes, with 

occasional reversals (flow away from the washes) during periods of peak surface flow associated with brief, intense 

summer rainstorms. The hydraulic conductivities of the alluvial and eolian formations are generally estimated to 

range between 1 to 10 feet per day (according to OSMRE DEIS, 2014, Section 4.5.2.1, hydraulic conductivities 

measured in two wells in the Pinabete Arroyo are 11.1 foot/day (or 3.8 x 10-3cm/sec) and 51.3 foot/day (or 

1.8 x 10-2cm/sec). The groundwater flow in the alluvial sediments is unconfined and fluctuates seasonally: the

highest water levels occur during the NAPI irrigation season of April through October.

92 OSMRE Navajo Mine Permit (No date), Chapter 6. Water quality within the alluvial fill deposits is generally 

poor with TDS concentrations at well QAC-1 (Chinde alluvium) ranging from 7,700 to 13,700 mg/L, and a mean of 

12,340 mg/L. The elevated TDS is the result of high concentrations of sodium, sulfate, and chloride (sodium 

chloride-sulfate water type), which is typical of these ephemeral wash alluvial aquifers. The concentration ranges of 

the major ions are: sulfate - from 500 to 5,520, with a mean of 4,150 mg/L; sodium - from 1,410 to 4,460 mg/L, with 

a mean of 3,669 mg/L; and chloride - from 1,200 to 4,900 mg/L, with a mean of 3,392 mg/L. According to Myers 

and Villanueva (1986), eighteen observation wells completed in the alluvium along the Chaco River yielded water 

with TDS ranging between approximately 550 to 2,400 mg/L (calculated from measured specific conductance). Six 

observation wells completed in the alluvium along the Bitsui, Chinde, and Cottonwood washes east and northeast of 

Chaco Wash (River) yielded water with TDS ranging approximately between 890 and 8,800 mg/L (calculated from 

measured specific conductance). The dominant cation in all samples is sodium. The dominant anion(s) in the 

samples from the Chaco River alluvium are bicarbonate or sulfate. The dominant anion in the samples from the 

alluvium in the tributary washes is sulfate, except for a single sample, in which both bicarbonate and sulfate are 

dominant. For all samples, sulfate concentration increases downstream as the specific conductance increases.

93 OSMRE DEIS (2014), Section 4.5.2.1 and Table 5.5-4. 

94 Completed in 1993, this analysis is based on eight years of surface water monitoring data (1985-1992).
III. CCR Rejected Damage Cases December 2014

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the low-TDS Navajo Reservoir water, approximately 33 miles east of Farmington in the less arid and 

more pristine upper reaches of the San Juan River.95 

Morgan Lake has had a significant impact on baseline conditions with respect to both surface water and 

groundwater quantity of the Navajo Mine Permit Area I and its periphery. For instance, the Chaco River 

is an ephemeral stream except for the last 12.5 miles of the river, where perennial flow is the result of 

spillway overflows from Morgan Lake. When TDS concentrations in the Lake reach 1100-1200mg/L, the 

lake is blown down; this blow down results in a return to the San Juan River of approximately 7,300 acrefeet (9.0 million m3

) of water per year. The lake is blown down approximately every three months.96 

In the area around its perimeter and within the Navajo Mine lease area, Morgan Lake causes mounding of

the potentiometric groundwater surface of the PCS.97 Replenished from the San Juan River, baseline 

water quality in Morgan Lake is generally similar to that of the San Juan River.98 The San Juan River, in 

turn, has a better water quality compared to water within the Chaco River Watershed: TDS concentrations 

in the Chaco River are approximately three times higher than TDS concentration within the San Juan 

River.99

Impact: EIP (2010) claims that the contamination of groundwater down-gradient from the Navajo Mine 

ash disposal areas is well documented, but groundwater data for the CCR surface impoundments have not 

been made available for independent review and analysis.100 EIP (2010) indicates, however, that two 

 

95 According to Animas-La Plata Project FSEIS (2000), the Navajo Reservoir has TDS of about 200 mg/L, and the 

San Juan River at Farmington – of about 280 mg/L (Volume 1, Tables 3-3 and 3-7, respectively). The corresponding 

values for chloride are 1 mg/L and 20.6 mg/L, respectively, and for arsenic - 1.8μg/L and 4.3μg/L, respectively. 

According to OSMRE Navajo Mine Permit (No date), Chapter 7, historically, seven surface water monitoring

stations were established on ephemeral drainages that pass through the Navajo Mine. All of the monitoring stations 

except station CS-l have been impacted by irrigation activities derived from the NAPI project. The cited findings are 

based on surface water quality data collected at the seven stations from 1986 to 1992 and from 1997 to 1999 and on 

surface water quality data collected for the Chinde Wash stations CD-l and CD-2 from 1996-2003. According to 

OSMRE Navajo Mine Permit (No date), Chapter 7, Similarly to the Bitsui Wash, under natural conditions the 

Chinde Wash would flow ephemerally or only in response to runoff from precipitation events. However, due to the 

existence of NAPI and its associated irrigation return flow and direct discharges, Chinde Wash flows perennially 

through the year with short term peak flows caused by precipitation or NAPI direct canal discharges.

96 U.S. Bureau of Reclamation 1976 and New Mexico Water Quality Control Commission 1976 data, cited in Abell 

(1994). According to OSMRE DEIS (2014), Section 2.2.4, between 2000 and 2011, approximately 4,826 acre-feet 

(about 5.9 million m3) per year were discharged from Morgan Lake via No Name Wash, a tributary of the Chaco 

Wash.

97 OSMRE (2012), Chapter 4, Figure 15. 

98 According to NNEPA DEIS (2007), Morgan Lake has, on average, TDS of about 750 mg/L, sulfate of about 410 

mg/L, chloride of 37 mg/L, and arsenic of 2.7μg/L. For data on the low trace element concentrations in the Lake’s 

intake water, see Table 98 in Abell (1994).

99 OSMRE (2012), Chapter 4, based on a comparison of water quality from USGS stations along the San Juan and 

Chaco Rivers. According to mid-1970s data cited in Abell (1994), Chaco Wash used to receive on average about 

140-200 acre-feet (173,000-247,000 m3) per month of fly ash pond decant water from the FCPP’s five 

impoundments. Consequently, upstream from the FCPP Chaco River water was dominated by sodium bicarbonate 

and sodium sulfate, whereas downstream, calcium sulfate and sodium sulfate predominated. For the water quality of 

the San Juan River, see Animas-La Plata Project FSEIS (2000), Table 3-7.

100 According to EIP (2010), Full assessment of the FCPP CCR impoundments has been hampered by the 

unwillingness of the operators to make monitoring data available for independent review and analysis or even to by

the NNEPA, the agency with presumable jurisdiction over the relevant environmental regulations at this site 

(EarthJustice, 2008). USWAG (2008) notes that there are no regulatory requirements to make the information 

accessible, and that FCPP’s lease with the Navajo Nation and its federal grants of rights-of-way contain covenants 

that expressly exclude the Navajo Nation from regulating the FCPP. USWAG (2008) concedes, however, that “in 

the late 80s FCPP installed monitoring wells to determine any seepage influence in the area alluvium...As a result of 

this oversight, APS elected to install synthetic lined ponds.”
III. CCR Rejected Damage Cases December 2014

26

separate statistical analyses of surface water quality in the Chaco Wash have shown degradation of water 

quality downstream from the CCR impoundments, ‘for which contamination by seepage and groundwater 

inflow is the only reasonable explanation’. One study101 notes levels of total dissolved solids (TDS), 

selenium, sulfate, and boron at higher concentrations in offsite locations downstream from the CCR 

impoundments and mine than in locations upstream of the site.102 The other study found statistically 

significant increases in five metals– boron, copper, lead, zinc, and mercury - downstream from the CCR 

disposal area.103

EIP (2010) indicates that the Navajo Nation water quality standards list the Chaco Wash as used for 

wildlife and livestock watering, aquatic habitat, and secondary human contact. EIP (2010) notes copper 

and lead above the New Mexico Environmental Protection Agency (NMEPA) recommended livestock 

water quality levels, as well as selenium and zinc above the U.S. Environmental Protection Agency’s 

(EPA) ambient water quality criteria (AWQC). 

EIP (2010) also notes that water from the impoundments has seeped out at various instances and has 

surfaced on the Chaco Wash banks.104 It is also noted that levels of many metals are the highest in the ash 

within the impoundments compared to other source material in the area, and that a single well in the 

disposal area (in contact with CCR and representative of a combination of ash pore water and 

groundwater) had arsenic above the primary EPA Maximum Contaminant Level (MCL) and boron above 

the EPA Child Health Advisory. 

According to GEI (2009), seepage was observed at the downstream toe of the south embankment of 

impoundment Nos. 3 and 4, which underlie the LAI. The seepage has been active for many years with no 

significant change, but is expected to diminish with time as the mostly unsaturated fly ash in these 

impoundments slowly dewaters. APS believes that the source of the seepage observed at the downstream 

toe is construction water that drains from the bottom ash placed to construct the LAI embankment.

APS responded to EarthJustice’s allegations submitted to the 2007 NODA docket105 by claiming that (i) 

new impoundments, with much lower permeability liners have replaced the leaking, clay-lined older 

impoundments; (ii) surface seepage intercept systems that have been installed in the 1980s as required by 

NPDES permits for all historically unlined impoundments are still in operation; (iii) drinking water 

standards are not applicable to surface impoundment water; and (iv) Navajo Nation’s water quality 

standards do not list the Chaco Wash as a drinking water source, only as a source for wildlife and 

livestock watering, aquatic habitat and secondary human contact. 

OSMRE106 claims that baseline alluvium aquifers’ water sampled in monitoring wells is of low quality, 

inferring that dissolved constituents are unrelated to the area’s management history of CCRs. 

The baseline results for the Cottonwood alluvial wells show water quality to be a sodium-sulfate type 

with relatively high but variable TDS concentrations. TDS concentrations ranged from 2,590 to 3,615 

mg/L. Median sulfate concentrations exceed recommended livestock use criteria at all the Cottonwood 

 

101 Zimmerman (2005) was sponsored by citizens’ groups to respond to information presented by BNCC and the 

Office of Surface Mining (OSM) at a National Academy of Sciences meeting in December 2004 concerning CCRs.

102 Specifically, EIP (2010) claims that downstream concentrations for boron (2.57 mg/L) were nearly 12 times 

greater than upstream concentrations (0.22 mg/L), and total dissolved solids (TDS) (2,644 mg/L), sulfate (1,118 

mg/L) and selenium (0.013 mg/L) were more than three times higher in the downstream segment of the river basin.

103 According to Ross (2007), average downstream concentrations were as follows: boron (3.0 mg/L), copper (0.8 

mg/L), lead (0.12 mg/L), zinc (0.21 mg/L), and mercury (0.0007 mg/L). 

104 EarthJustice, Comment to the 2007 NODA (ibid): “In October 2007, an inspection of the impoundments by the 

Navajo EPA revealed that impoundment water was again seeping and surfacing on the banks of the Chaco Wash.”

105 EPA-HQ-RCRA-2006-0796-0446, Document No. 4.

106 OSMRE DEIS (2014), Section 4.5.2.1 and Table 4.5-5.
III. CCR Rejected Damage Cases December 2014

27

alluvial wells. Median concentrations of TDS and sulfate in the groundwater within the Cottonwood 

alluvial wells also exceed EPA’s Secondary Drinking water use criteria. Fluoride concentrations fluctuate 

in the alluvial groundwater and are often above relevant criteria for livestock and drinking water use. The 

baseline results for the Pinabete alluvial wells show the water quality to be a sodium-sulfate type with 

TDS concentrations ranging from 1,500 to 4,300 mg/L. Water within the alluvium is unsuitable for 

drinking water use due to TDS, sulfate, fluoride, iron, and manganese concentrations above secondary 

drinking water standards. The quality of the alluvial groundwater varies, although the TDS, sulfate, and 

fluoride concentrations usually exceed relevant criteria for livestock use. Finally, the baseline results for 

the No Name Arroyo alluvial wells show the water to be a sodium-sulfate type similar to Pinabete Arroyo 

but with much higher sulfate, sodium, and TDS concentrations. Water quality within the alluvium 

downstream of the No Name Impoundment is unsuitable for either drinking water or livestock water use.

Zimmerman (2005) interprets steep increase of TDS and sulfate in well Kf-83 (1995-1999) and of TDS in 

well Bitsui-5 (1996-1998) as an indication for leaching from CCR-reclaimed mine areas.107 He also points 

out to the fact that the TDS and boron concentrations for the NNEPA station in the alluvium just below 

the Bitsui Wash are much higher than alluvial channel values of these parameters in areas not affected by 

the mine (e.g., upper Chaco Wash, Ojo Amarillio, and Gallegos Canyon; see Figure 3b there). In addition, 

Zimmerman interprets the increased TDS and sulfate levels in surface water between the upstream and 

downstream monitoring points of the Chinde Wash as caused by the Wash’s crossing the mine 

reclamation area, whereas the absence of corresponding increases in the Cottonwood Wash is due to the 

diversion of this creek around the mine’s reclamation area. Finally, that study compared the downstream 

and upstream concentrations of TDS, pH, sulfate, sulfate-to-TDS ratio, boron, selenium, and arsenic, 

concluding that “in almost every case, the concentration of these water quality parameters was at least 

three times greater along the downstream reach of the Chaco Wash that is adjacent to or below the mine 

and power plant.”

Subject to its NPDES authority in conjunction with the backfilling of the BNCC Navajo Mine, EPA’s 

region 9 assessed the 2005 Zimmerman Report. Based on its review, EPA concluded that it does not agree 

that available data demonstrate that pollutant levels are increasing downstream the Chaco Wash to a 

statistically significant degree due to discharges associated with the mine backfill site; and that FCPP’s 

CCR backfilling is contributing to surface water quality degradation. EPA’s conclusions are based on the 

following arguments: 108

(1) Existing NPDES monitoring records of Navajo Mine wastewater outfall discharges from 2000 

onwards (all limited to the Bitsui Pit’s discharge Outfall 008) demonstrate, with the exception of three 

TSS exceedance in September 2002, compliance with permit limits for TSS, iron and pH.109 Based solely 

on the volume of runoff generated from active mine areas, coal preparation plant areas and reclamation 

areas, that has historically been discharged from the mine site related to the annual flow volume of the 

Chaco River, and the fact that the closest discharge outfall is located a minimum of 3.2 stream kilometers 

 

107 Whereas well Kf-83 is considered by BNCC as a ‘background’ well, it is located about two miles down the steep 

potentiometric gradient that drains Lake Morgan groundwater through the mine backfill area. Well Bitsui-5 lies 

directly down-gradient of the CCR backfill area.

108 EPA Region 9 Response to NPDES Comments (2008).

109 According to BHP Navajo Mine NPDES Permit (No date), together with other seven outfalls, this Outfall meets 

the definition of "alkaline, mine drainage" in 40 CFR Part 434.11(c). Therefore, the proposed permit sets limits for 

this outfall in accordance with the requirements of Subpart D - Alkaline Mine Drainage for BPT, BCT, and BAT 

regulations that apply to such discharges. The proposed permit sets discharge limits for Outfall 008 for iron (3.5 

mg/L daily average and 7.0 mg/L daily maximum), boron (0.750 mg/L daily average and 1.50 mg/L daily 

maximum), Total Suspended Solids (TSS; 35 mg/L daily average and 70 mg/L daily maximum), and pH (no less 

than 6.0 or greater than 9.0 standard pH units).
III. CCR Rejected Damage Cases December 2014

28

from the Chaco River, EPA believes it is unlikely that the discharge from the mine site has the ability to 

impact the Chaco River.110

(2) The historical water quality data used to characterize these (upstream and downstream) regimes are 

highly variable both spatially and temporally and based on concerns of faulty statistical methodology. 

Specifically:

(i) Improper statistical analysis of two dissimilar sets of USGS water well data from 1970-1990 in 

the upper and lower reaches of the Chaco Wash west and southwest of the Navajo Mine area;111

(ii) Inadequate demarcation of the physical boundary separating those two data sets;112

(iii) Disparate size of the two geographic areas under comparison;113

(iv) Inconsistent temporal data; and

(v) Inappropriate representation of central tendencies of data from the analyzed measurement 

stations.114

(3) “OSMRE reported (in its EA) that historically San Juan River (of which the Chaco Wash is a 

tributary) Basin’s surface water quality is poor with high levels of TSS and TDS” and that the River’s 

“water does not meet standards for domestic or livestock use”;115 and

(4) As demonstrated by the FCPP-commissioned Norwest (2007) study, the Zimmerman (2005) Report 

failed to address natural processes (e.g., rock weathering and dissolution, wind dispersal runoff sources, 

and evaporation) that can modulate background levels of concerned constituents temporally and spatially, 

as well as the effects of other anthropogenic process (e.g., irrigation water runoff from NAPI.)

Finally, according to the Navajo Indian Health Service, there are no public system drinking water wells in 

the vicinity of the FCPP and none of the 200 unregulated livestock wells sampled by CDC, EPA’s 

Drinking Water and Superfund programs are anywhere near this region.116

To assess the extent to which CCR disposal, which occurred predominantly within the historic mining 

area north of the BNCC permit, has impacted the groundwater of the Chaco River’s alluvial aquifer, 

 

110 Ibid. Note, however, that the existing NPDES permit at that time did not require monitoring of any trace metals 

(with the exception of iron) or major ions (NPDES BHP Navajo, 2008). Arsenic, boron, cadmium, lead, selenium, 

sulfate, and total dissolved solids were first required as additional parameters to be monitored, in response to 

commenter requests, in the reissued, February 13, 2008 NDPES permit.

111 Specifically, Zimmerman report took blanket averages for all stations and their averaged annual values, 

irrespective of sample size, failing to account for the fact that collected monitoring points vary year to year for 

station to station, (e.g., some stations had multiple data points in a given year while others had only a single data 

value per station).

112 Specifically, the upstream regime for the compiled TDS data is based on an overwhelmingly large area and pool 

of monitoring points in respect to the downstream regime. The disparity can affect the results of the t-test since the 

two groups are not approximately balanced.

113 The Zimmerman report compares two data sets, one representing the “downstream” collection that represents an 

area of approximately 44,000 acres and another representing the “upstream” collection that represents an area of 

approximately 3.17 million acres. The presumption that these two data sets should demonstrate a similar average 

concentration is a fundamental flaw of the analysis presented by the commenter.

114 E.g., (i) the Zimmerman report ought to have resolved statistical bias by averaging each station’s respected year 

and then aggregate and average a sampling station’s annual averages to represent a station's single calculated mean. 

The report's blanket averaging approach did not mitigate temporal variability. In fact, it confounded both temporal 

and spatial variability and promoted statistical bias; and (ii) given the extreme variability of results for the 

“downstream” data, (i.e., TDS results ranging from 760 to 12,000 mg/L), an average value as presented in the 

Zimmerman report is of limited utility to compare to another highly variable data set (i.e., the “upstream” data) and 

is highly dependent on the number of samples taken, the time of the sampling, and the location of the sampling 

stations.

115 This argument generally applies to the tributaries of the San Juan River, such as the Bitsui and Chinde Wash, but 

not to the San Juan River that has good quality water. 

116 EPA Region 9 Response to NPDES Comments (2008).
III. CCR Rejected Damage Cases December 2014

29

OSMRE presents groundwater monitoring well and modeling analysis.117 A comparison of CCB wells to 

the median concentrations for baseline Fruitland coals within the BNCC lease shows that within the CCB 

disposal areas boron, fluoride, sulfate and TDS are all considered to be of concern relative to baseline and 

livestock criteria.118 However, in order for the historic CCB disposal to have significant impact on water 

quality, CCB leachate would need to have sufficient mobility to reach alluvium aquifer water users within 

the vicinity of the historic disposal sites at significant concentrations. Modeling, conducted by OSMRE 

and BNCC to assess the impact of historic CCB placement relative to nearby alluvial systems, showed 

that it is unlikely that any significant future effects will ensue from the CCB disposal at the Navajo Mine 

because of the very slow-rate groundwater movement and the attenuation of contaminants of concern as 

they migrate through the subsurface.119 Based on this analysis OSMRE concludes that potential impacts to 

water users from CCB disposal at the Navajo Mine are negligible.120

Norwest Applied Hydrology (2007) claims that CCBs at the Navajo Mine are placed in mine pits, on 

geologic formations that dip to the east, away from the Chaco River. At the northern portion of the mine 

any groundwater associated with CCB placement in the Watson, Bitsui, Dodge, Custer, and Bighan Pits 

cannot flow west to the Chaco River because of the 10-25 feet thick shale layer separating the bottom of 

the pit from the PCS and the higher groundwater levels in the PCS due to the influence of Morgan Lake 

which preclude such a pathway.

OSMRE also conducted a similar analysis to assess the impact of mining (without subsequent reclamation 

through backfill with CCR) on groundwater sampled in monitoring wells of the Chinde Wash. A 

comparison of monitoring well data to the Cottonwood baseline median concentration levels shows major 

impacts for conductivity, boron, total iron, manganese, chloride, sulfate and TDS. The median 

concentrations for all of these criteria except chloride, sulfate, and TDS, however, are below the relevant 

 

117 The only saturated CCR-containing pit, Bitsui, is located within this historic minefill area. OSMRE refers to the 

backfill material as Coal Combustion Byproduct (CCB).

118 OSMRE (20102), Chapter 4. EPA (EPA Region 9 Response to NPDES Comments, 2008) concurs with this 

conclusion, stating: “Concentrations of sulfate, TDS and boron monitored by the Navajo Nation EPA in the surface 

waters of the Bitsui Wash downstream from the Bitsui ash pit in the northeast corner of the Navajo Mine are at 

harmful levels that are beyond background levels. Levels of these constituents in monitoring wells down-gradient of 

ash in the Bitsui Ash Pit located upstream of this surface water monitoring point have risen clearly to harmful 

concentrations indicating the ash is the source of the degradation in the Wash.”

119 OSMRE (2012), Appendix G: Coal Combustion Byproduct Assessment: 

http://www.wrcc.osmre.gov/Current_Initiatives/CHIA/Navajo/Appendix%20G%20-

%20Coal%20Combustion%20Byproducts%20Assessment.pdf. Furthermore, as summarized in OSMRE DEIS 

(2014), Section 4.5.2.1, unsaturated conditions currently exist at CCR backfill placement locations except for two 

locations at the northern end of Area I. CCR materials placed in the Bitsui Pit are saturated as is an isolated location 

of basal saturation of CCR material around the Watson-4 well. Current groundwater flow directions from the Bitsui 

Pit are toward the subcrop of the Fruitland Formation along the alluvium of the San Juan River. Any groundwater 

flow in the future from Mine lease Area I and portions of Area II is also expected to be to the northeast toward 

Fruitland Formation subcrop along the alluvium of the San Juan River. Consequently, groundwater from CCR 

placement locations and associated mine backfill within Areas I and II are not expected to affect the alluvium of the 

Chaco River.

120 In response to Zimmerman (2005), BNCC cites Norwest Applied Hydrology (2007) to argue that (i) leachates 

from CCRs have low levels of soluble sulfates relative to sulfates in alluvial groundwater and groundwater in mine 

backfill, and therefore an increase in sulfate concentrations is not an indicator of contamination by CCRs; (ii) sulfate 

levels in the region commonly increase as water moves through watersheds of arid lands due to the dissolution of 

naturally occurring sulfate-bearing minerals and due to evaporation. Thus, surface water in the Chaco Basin will 

typically demonstrate increased levels of sulfate in the lower reaches of the watershed; and (iii) CCRs are buried in 

subsurface pits, surrounded by overburden and not exposed to surface runoff. Note, however, that the last argument 

is refuted by OSMRE’s and EPA’s evidence about the impact of CCR backfill and coal mining-affected surface 

water and groundwater.
III. CCR Rejected Damage Cases December 2014

30

livestock use criteria. Therefore, while the impact designation can be considerable for certain constituents 

it does not appear to translate into a significant impairment of use. 

Chinde Wash surface water quality data at four BNCC surface monitoring stations which bracket the 

lease area were used to assess the impact of mining (without subsequent reclamation through backfill with 

CCR) on surface water sampled in surface stations of the Chinde Wash. 121, 122 NNEPA acute aquatic and 

wildlife habitat criteria were exceeded in all the samples for chromium, and at a lower frequency - for 

cadmium, selenium, silver and zinc. NNEPA chronic aquatic and wildlife habitat criteria were exceeded 

in all the samples for cadmium, and at a lower frequency - for aluminum, chromium, lead, selenium, and 

zinc. Livestock criteria for selenium were exceeded for about one quarter of the samples, and at a smaller 

frequency – for boron, chloride, sulfate and TDS.123 The median cadmium, lead, selenium and zinc 

concentrations were greater than NNEPA chronic aquatic and wildlife habitat standards, and the median 

chromium and zinc concentrations were greater than NNEPA acute aquatic and wildlife habitat 

standards.124 In spite of these findings, OSMRE concludes that surface water quality within the Chinde 

Wash as compared to the NNEPA criteria is appropriate for the designated post-mining land use of 

livestock grazing.

Finally, based on several sources,125 APS’ failure to control fugitive dust resulting from its disposal 

activities, in combination with the arid climate and often windy conditions on the Navajo reservation 

make fugitive coal ash from the still uncovered/un-reclaimed impoundments a serious health and 

environmental contamination issue.126

USWAG does not consider this site to qualify as a damage case.

127

 

121 OSMRE (2012), Chapter 5.

122 Monitoring stations compared are CD-2 and CD-2A downstream of the mine and CD-1 and CD-1A upstream of 

the mine. Water quality data was collected at CD-1 and CD-2 from 1986 to 1997 and at CD-1A and CD-2A from 

1996 to present. There is no pre-mining data on Chinde Wash, however, CD-1 and CD-1A were considered as 

baseline as they are upstream of the mine. It is important to note that while upstream of mining, CD-1 and CD-1A 

are both downstream of NAPI activities, and there is no pre-NAPI data on Chinde Wash, which is subject to both 

direct and indirect NAPI influences.

123 OSMRE DEIS (2014), Section 4.5.2.1 claims that considering that groundwater flow in the San Juan River 

alluvium is estimated to be approximately two orders of magnitude higher than the estimates of groundwater flow 

discharging to the San Juan River alluvium from the Fruitland Formation, TDS and trace constituents such as boron 

that may be above livestock suitability levels in CCR or mine spoil leachate will be reduced by mixing with the 

groundwater in the San Juan River alluvium even if they are not attenuated during transport to the Fruitland 

Formation. 

124 Thomas et al. (1998) found that in the San Juan River Basin, water samples from DOI project irrigation-drainage 

sites developed on Cretaceous soils contained a mean selenium concentration about 10 times greater than those in 

samples from DOI project sites developed on non-Cretaceous soils. Percolation of irrigation water through these 

soils and sediments leaches selenium into receiving waters.

125 Navajo resident complains to Susan Bodine, US EPA’s AA for OSWER, in a meeting on October 24, 2006; 

EarthJustice comment to the 2007 NODA docket (EPA-HQ-RCRA-2006-0796-0446); Denver CCR Rule Public 

Hearings transcript, pp. 59-60, 67, 107, and 275 (http://www.epa.gov/waste/nonhaz/industrial/special/fossil/ccrrule/transcripts/transcript-denver-co.pdf); and EIP (2010).

126 APS’ response to EarthJustice allegations as presented in the comments to the 2007 NODA address this issue by 

claiming that (i) active measures, such as dust suppressants, wetting, and compaction are undertaken to control 

fugitive dust; and (ii) FCPP has been approached by the Navajo Nation to ask for application of CCRs on soils of the 

NAPI Project.

127 USWAG’s comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211), November 14, 2011: “This 

case does not meet the criteria for a damage case to surface water because allegations of damage to surface water 

quality are based on suspect data and interpretations that have not been independently verified or evaluated. The 

locations, dates, and methods for collection of surface water samples have not been provided. Parameter data are 
III. CCR Rejected Damage Cases December 2014

31

Evaluation against Proven Damage Criteria

Resolution/Remediation: According to EarthJustice128 and USWAG,129 an intercept system around the

ponds Nos. 3, 4 and 5 was installed in 1977 to intercept seepage and has been continuously operated since 

that time. In 1992, after seeps from the impoundments were discovered to be discharging to the Chaco 

Wash and following the finding of high levels of boron in the stream, EPA issued a 1997 compliance 

schedule that required construction of a groundwater intercept system (extraction wells) around Ponds 3, 

4 and 5 and conversion to lined evaporation ponds. Additional extraction wells were installed in 2011. In 

2003, compaction and regarding work was launched on top of Pond Nos. 3, 4 and 5, which were no 

longer in use, to prepare the surface for a synthetic liner. After preparation of the surface on Pond Nos. 3 

and 4, a single liner (60 mil polyethylene, HDPE) was placed on about 72 acres in Pond No. 4 before 

receiving Units 1-2-3 and later Units 4-5 sluiced fly ash and FGD underflow, respectively. A double-lined 

(60 mil polyethylene, HDPE) 40 acre pond with a leak collection system was installed on top of Pond No. 

3 to collect decanted ash sluice water from the single lined area of Pond No. 4. The double-lined water 

pond was constructed with a pump back system to allow reuse of the decanted process liquor as scrubber 

makeup (this was also done for pond No. 6, while still in service). A single liner (60 mil polyethylene, 

HDPE) for Pond No. 5 was installed in 2009. 

In October 2011, APS constructed a north intercept trench excavated to the bottom of the shale formation. 

A review of groundwater level data and water quality data in three wells located down-gradient of the 

trench show declines in all constituents and groundwater level. APS is currently in the process of 

installing a second south intercept trench to remediate groundwater (2013). With the operation of the 

intercept trenches, continued operation and expansion of the DFADAs would have less potential to 

contaminate local groundwater and water quality in Chaco Wash.

 

compared to several different water quality standards, including Federal Quality Criteria for chronic exposure to 

aquatic freshwater organisms, Navajo Nation’s water quality standards for fish and wildlife habitat, and New 

Mexico livestock standards. In addition, 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.”

128 EPA-HQ-RCRA-2006-0796-0446, Document No. 4. 

129 USWAG (2008).

Criteria Evaluation

Criterion 1:  Onsite water sample from a single “well” in the disposal area (in contact with CCR 

pore water) had arsenic above the primary EPA MCL and boron above the EPA Child 

Health Advisory. 

 The operator performs voluntary groundwater monitoring, but has not been willing to 

share the data with regulatory authorities.

Criterion 2:  Two statistical analyses of surface water data from the Chaco Wash have shown 

higher concentrations of various metals downstream from the impoundments 

compared to surface water upstream from the impoundments. However, one of these 

studies is considered unacceptable due to errors in its statistical methods.

 Copper and lead were found in downstream surface water at levels above the NNEPA 

recommended livestock water quality criteria, as well as selenium and zinc above 

AWQC.

Criterion 3:  None
III. CCR Rejected Damage Cases December 2014

32

Surface discharge of fly ash sluicing water was stopped in late 1979. The substitute system decants water 

from the top of the impoundments and returns it to the plant for reuse in the scrubber system. The 

intercept systems were installed for Pond No. 6 when the pond was constructed. APS has not yet 

submitted closure plans for the old ash ponds Nos. 3 and 6. 

Between 2014 and 2016, FGD waste generated from Units 4 and 5 would continue to be placed in 

DFADA Sites 1 and 2 until these sites reach capacity. APS would construct five additional DFADAs to 

accommodate future disposal of all fly ash, bottom ash, and FGD waste generated through the duration of 

the lease term. The total area of new DFADAs would be approximately 350 acres in surface area and 

approximately 80 feet high. Estimated annual storage volumes would be 1,118 acre-feet per year. Each 

site is anticipated to be in operation for 5 years. In addition to the five new sites, a surge pond (lined 

impoundment) would be constructed to capture generated FGD waste and historic ash impoundment 

seepage intercept water.130

Evaluation:131 ”Not a damage case. CCR is managed alongside mining wastes on the site, and the 

studies presented do not specifically implicate CCRs as a cause for contamination. The onsite water 

sample from a “well” in the CCR disposal area which had arsenic above the primary EPA MCL and 

boron above the EPA Child Health Advisory is arguably not a groundwater sample, but more 

representative of an ash pore water sample. While the statistical analyses of surface water data claim there 

is degradation of water quality downstream of the site, there is no risk assessment or scientific study 

available that explicitly documents evidence of damage to human health or the environment.”

Rationale for Rejection: The site co-manages CCRs, coal mining wastes and minefilled CCRs. The 

studies that observed the downstream surface water degradation do not specifically implicate CCRs as the 

cause of the impact. 

Whereas the compliance schedule issued by the EPA in 1992 was triggered by leakage and discharge 

from the FCPP’s impoundments, the extent to which the impoundments still are a groundwater 

contamination source term is unknown on account of FCPP’s reluctance to avail its voluntary monitoring 

records of the FCPP’s surface impoundments. It is not clear to what extent the exceedances are 

excacerbated by leakage from strip coal mining and/or CCR backfilling in the mine’s open pits: whereas 

existing geohydrologic modeling assumes very slow groundwater movement in the Fruitland Formation it 

totally disregards fracture flow.132 The role of the NAPI irrigation return flows and Morgan Lake’s 

seepage in mobilizing local soil and bedrock constituents is not clearly established: the statistical analysis 

of surface water data presumably representative of ‘down-gradient’ vs. ‘up-gradient’ FCPP impoundment 

wells reported in Zimmerman (2005) is flawed so as to render its findings unacceptable. Finally, even if 

leaching from mine backfill CCRs were an issue, this particular management activity is outside the scope 

of the current CCR rulemaking. 

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.

 

130 OSMRE DEIS (2014), Section 4.15.4.1. 

131 ICF (2010).

132See, for instance, Haerer and McPherson (2008): “Our model results to date suggest that existing San Juan 

permeability measurements are underestimated compared to meaningful basin-scale values. Local measurements 

typically ignore fractures, faults, and high velocity conduits which are abundant at the basin scale. Simulation results 

indicate that the Fruitland Coal and other adjacent formations may carry much larger quantities of water and heat 

than previously anticipated.” 
III. CCR Rejected Damage Cases December 2014

33

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

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

Appendix B, Case #17. ICF, October 2010.

APS (2009): Arizona Public Service Company - Corporate Response: Request for Information under 

104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 

9604(e), March 26, 2009. Accessed Online March 2013.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys/aps2.pdf

GEI (2009): Final Coal Ash Impoundment –Specific Site Assessment Report, Arizona Public Service, 

Four Corners Power Plant, GEI Consultants, Inc., Project No. 091330, September 2009. Accessed Online 

March 2013.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/aps4crn-final.pdf

Myers and Villanueva (1986): Myers, R.G., and Villanueva, E.D., 1986, Geohydrology of the aquifers 

that may be affected by the surface mining of coal in the Fruitland Formation in the San Juan Basin, 

northwestern New Mexico: U.S. Geological Survey Water-Resources Investigations Report 85-4251, 41 

p. Accessed Online March 2013.

http://pubs.usgs.gov/wri/1985/4251/report.pdf

Kaiser et al., (1994): Kaiser, W.R., Swartz, T.E., and Hawkins, G.J., Hydrologic Framework of the 

Fruitland Formation, San Juan Basin. New Mexico Bureau of Mines and Minerals Bulletin 146: Coalbed 

methane in the upper Cretaceous Fruitland Formation, San Juan Basin, New Mexico and Colorado, pp. 

133-164, 1994. Accessed Online March 2013.

http://geosurvey.state.co.us/pubs/online/Documents/1994%20RS-31.pdf

EPA Region 9 Response to NPDES Comments (2008): EPA Region 9 Response to Comments BHP 

Billiton Navajo Coal Company - Navajo Mine NPDES Permit No. NN0028193. Accessed Online March 

2013.

http://www.epa.gov/region9/water/npdes/pdf/navajo/navajo-resp-comments-2-14-08-final.pdf

NPDES BHP Navajo (2008): National Pollutant Discharge Elimination System Permit No NN0028193. 

Accessed Online March 2013.

http://www.epa.gov/region9/water/npdes/pdf/navajo/bhp-navajo-final-permit-02-13-08.pdf

Ross (2007): Effects of Four Corner Power Plant Coal Combustion Waste Disposal on Surface and 

Groundwater Quality. Glenrose Engineering, Austin, Texas. Ross, L., submitted to Lisa Evans, 

EarthJustice, August 2007.

Norwest Applied Hydrology (2007): Technical Review of a Report Prepared by D.A. Zimmerman (2005) 

entitled ‘A Preliminary Evaluation of the Potential for Surface Water Quality Impacts from Fly Ash 

Disposal at the Navajo Mine, New Mexico’, Norwest Applied Hydrology prepared for BHP Navajo Coal 

Company, October 2007. Accessed Online March 2013. 

http://www.epa.gov/region9/water/npdes/pdf/navajo/bhp-comments.pdf

Zimmerman (2005): A Preliminary Evaluation of the Potential for Surface Water Quality Impacts from 

Fly Ash Disposal at the Navajo Mine, New Mexico, Zimmerman, D.A. Prepared for Submission to the 

National Academy of Sciences Committee on Mine Placement of Coal Combustion Wastes. SETA, Inc. 

Cedar Crest NM, May 25, 2005. Accessed Online March 2013.

http://www.setainc.com/
III. CCR Rejected Damage Cases December 2014

34

EarthJustice (2008): Comments on U.S. Environmental Protection Agency’s Coal Combustion Waste 

Damage Case Assessment (July, 2007). Prepared (February 11, 2008) by EathJustice, Clean Air Task 

Force et al., in response to U.S EPA, Notice of Data Availability 72 Fed. Reg. 49714, RCRA Docket 

Document No. EPA-HQ-RCRA-2006-0796-0446.

USWAG (2008): Supplementary Information to EarthJustice Allegations of Additional CCW Damage 

Cases, Utility Solid Waste Activities Group, July 30, 2008, RCRA Docket Document No. EPA-HQRCRA-2006-0796-0468.

OSMRE (2012): Cumulative Hydrologic Impact Assessment (CHIA) of the BHP Navajo Coal 

Company’s (BNCC) Navajo Mine, Office of Surface Mining Reclamation and Enforcement, 2012. 

Accessed Online March 2013.

http://www.wrcc.osmre.gov/Current_Initiatives/CHIA/Navajo/Chapter1.pdf

http://www.wrcc.osmre.gov/Current_Initiatives/CHIA/Navajo/Chapter2.pdf

http://www.wrcc.osmre.gov/Current_Initiatives/CHIA/Navajo/Chapter3.pdf

http://www.wrcc.osmre.gov/Current_Initiatives/CHIA/Navajo/Chapter4.pdf

http://www.wrcc.osmre.gov/Current_Initiatives/CHIA/Navajo/Chapter5.pdf

OSMRE Navajo Mine Permit (No date): The Navajo Mine, the currently approved Navajo Mine Permit 

Application, Permit Number NM0003F, Office of Surface Mining Reclamation and Enforcement. 

Accessed Online March 2013. 

http://www.wrcc.osmre.gov/Current_Initiatives/Navajo_Mine/Permit.shtm

Animas-La Plata Project FSEIS (2000): Animas-La Plata Project, Colorado – New Mexico Final 

Supplemental Environmental Impact Statement, Volume 1. U.S. Department of the Interior Bureau of 

Reclamation, Upper Colorado region, 2000. Accessed Online March 2013.

http://www.usbr.gov/uc/envdocs/eis/animas/fseis/index.html

BHP Navajo Mine NPDES Permit (No date): BHP Billiton Navajo Coal Company - Navajo Mine, 

NPDES Permit No. NN0028193 Fact Sheet, U.S. Environmental Protection Agency, Region IX, CWA 

Standards & Permits Office. Accessed Online March 2013.

http://www.epa.gov/region9/water/npdes/pdf/navajo/bhp-navajo-final-fs.pdf

EPA Navajo Minefill Site Visit (2001): Coal Combustion Waste Minefill Management Practices - Navajo 

Nation - U.S. EPA Site Visit Draft Report, December 13, 2001. Accessed Online April 2013.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/sites/nn-visit.pdf

Siemers and King (1974): Macroinvertebrate Paleoecology of a Transgressive Marine Sandstone, Cliff 

House Sandstone (Upper Cretaceous), Chaco Canyon, Northwestern New Mexico, Charles T. Siemers 

and Norman R. King. Pages 67-77 in New Mexico Geol. Soc. Guidebook, 25th Field Conf., Ghost Ranch 

(Central-Northern N.M.) and Contribution Number 6 of the Chaco Center Series, National Park Service 

and the University of New Mexico, 1974. Accessed Online April 2013.

http://nmgs.nmt.edu/publications/guidebooks/downloads/25/25_p0267_p0277.pdf

NNEPA DEIS (2007): Navajo Nation Environmental Protection Agency Water Quality Data, Desert 

Rock Energy Project Draft EIS, Appendix F, May 2007. Accessed Online April 2013.

http://teeic.anl.gov/documents/docs/library/DesertRockDraftEIS_AppendixF.pdf
III. CCR Rejected Damage Cases December 2014

35

OSMRE DEIS (2014): Draft Environmental Impact Assessment (DEIS) for the Four Corners Power Plant 

and Navajo Mine Energy Project. Office of Surface Mining and Enforcement, U.S. Department of the 

Interior, March 28, 2014. Accessed Online April 2014.

http://www.wrcc.osmre.gov/initiatives/fourCorners/documentLibrary.shtm

Fasset J.E. (2000): Geology and Coal Resources of the Upper Cretaceous Fruitland Formation, San Juan 

Basin, New Mexico and Colorado, James E. Fassett chap. Q In Kirschbaum, M.A., Roberts, L.N.R., and 

Biewick, L.R.H., eds., Geologic Assessment of Coal in the Colorado Plateau: Arizona, Colorado, New 

Mexico, and Utah. Accessed Online April 2014.

Dubiel, R.F. (2013): Geology, sequence stratigraphy, and oil and gas assessment of the Lewis Shale Total 

Petroleum System, San Juan Basin, New Mexico and Colorado, Chap. 5 of U.S. Geological Survey San 

Juan Basin Assessment Team, Total petroleum systems and geologic assessment of undiscovered oil and 

gas resources in the San Juan Basin Province, exclusive of Paleozoic rocks, New Mexico and Colorado: 

U.S. Geological Survey Digital Data Series 69–F, p. 1–45.

Wilson, T.H. et al., (2012): Fracture and 3D seismic interpretations of the Fruitland Formation and cover 

strata: Implications for CO2 retention and tracer movement, San Juan Basin Pilot test, Thomas H. Wilson, 

Art Wells, Dwight Peters, Andrew Mioduchowski, Gabriela Martinez, George Koperna, Bill N. Akwari, 

Jason Heath, International Journal of Coal Geology, Volume 99, 1 September 2012, Pages 35–53. 

Accessed Online April 2014. http://www.sciencedirect.com/science/article/pii/S0166516212000432

McCord, J. et al., (1992): Heat-flow data suggest large ground-water fluxes through Fruitland coals of the 

northern San Juan basin, Colorado-New Mexico, John McCord, Marshall Reiter and 

Fred Phillips, Geology, v. 20 no. 5, 1992, p. 419-422. Accessed Online April 2014.

http://dx.doi.org/10.1016/j.coal.2012.02.007

Haerer and McPherson (2008): Evaluating the impacts and capabilities of long term subsurface storage in 

the context of carbon sequestration in the San Juan basin, NM and CO. Drew Haerer, Brian McPherson, 

Energy Procedia, Volume 1, Issue 1, February 2009, Pages 2991–2998. Greenhouse Gas Control 

Technologies 9, Proceedings of the 9th International Conference on Greenhouse Gas Control 

Technologies (GHGT-9), 16–20 November 2008, Washington DC, USA. Accessed Online April 2014. 

http://www.sciencedirect.com/science/article/pii/S187661020900719X

Thomas et al., (1998): Detailed study of selenium and selected constituents in water, bottom sediment, 

soil, and biota associated with irrigation drainage in the San Juan River area, New Mexico, 1991-1995. 

Thomas, C.L., R.M. Wilson, J.D. Lusk, R.S. Bristol, and A.R. Shineman, 1998. U.S. Geological Survey 

Open-File Report 98-4213, Albuquerque, NM. 84 pp. In Endangered Species Act – Section 7 

Consultation, Draft Biological Opinion, Desert Rock Energy Project, New Mexico; consultation by U.S. 

Fish and Wildlife Service, New Mexico Ecological Services Field Office for the U.S. Bureau of Indian 

Affairs, October 15, 2009. Accessed Online April 2014.

http://www.biologicaldiversity.org/programs/public_lands/energy/dirty_energy_development/coal/pdfs/E

X_B.pdf

Abell (1994): San Juan River Basin Water Quality and Contaminants Review, Volume I. Robin Abell, 

Museum of Southwestern Biology, Department of Biology, University of New Mexico, April 1994. 

Accessed Online April 2014.
III. CCR Rejected Damage Cases December 2014

36

R09. Antelope Valley Station - Basin Electric Power Cooperative, Beulah, Mercer County, 

North Dakota

Type: Landfills (and non-implicated) Surface Impoundments.

Background and Description: The Antelope Valley Station (AVS), located seven miles northwest of 

Beulah, North Dakota, has disposed of CCR from the Basin Electric Power Cooperative since 1984.133

The Station contains five impoundments. Two of these, located northeast and north of the power plant, 

are permitted to store fly ash/flue gas emission and bottom ash. There are also two above-grade ponds 

which do not accept CCR: the Spray Drier Ash Water Make-Up Pond (SDA Pond)134 and the SDA 

Decantation Pond.135 The CCR byproducts generated at AVS are hauled to a nearby landfill,136 which is 

operated under the same permit issued by the North Dakota Department of Health for the SDA Pond and 

SDA Decantation Pond.137 The inactive CCR landfill was constructed on property that contains a 

reclaimed coal mine.138 The active coal ash landfill and the two ash ponds were not assessed in EIP 

(2010a). 

 

133 This baseload, mine-mouth plant comprises two generation units, with 450 MW-capacity each. Unit 1 began 

commercial operation in 1984 and Unit 2 began in 1986. Lignite coal is supplied through an 8-mile long conveyor 

belt from the co-located Freedom Mine. AVS generates approximately 1,500 tons/day of fly ash (from a baghouse 

and dry scrubber system) and 2,000 tons/day of bottom ash (EPA Minefill Site visit, 2001, and 

http://www.basinelectric.com/Electricity/Generation/Antelope_Valley_Station/index.html).

134 According to GEI (2011), the SDA Pond was commissioned during construction of the plant (1982/83). It covers 

3.1 acres and has a nominal capacity of 28 acre-feet at a maximum design depth of 11 feet. The pond was originally 

constructed with a Hypalon liner, which in 1995 was replaced with a double layer high density polyethylene 

(HDPE) leachate collection system. The HDPE leachate collection system collects seepage (about 200 gallons per 

day), which is then pumped back to the pond. The permeability of the HDPE liner is 1 x 10-8cm/sec. According to 

Basin Electric (2009a), the major waste sources to the SDA pond are the plant's low quality sumps, neutralizing 

sumps and cooling water blowdown. In addition, the coal-handling area sumps and the S02 absorber and limereceiving building sumps discharge to the pond intermittently.

135 According to GEI (2011), the SDA Decantation Pond was first constructed and utilized in 1986 and first 

permitted in 1988 (Basin Electric, 2009b claims that the Decant pond was commissioned sometime during 1993). 

The Pond covers 3.4 acres with a storage capacity of approximately 18.6 acre-feet (or 19.4 acre-feet according to 

Basin Electric, 2009b). The SDA Decantation Pond accepts dredged material and water from the SDA Pond when 

the SDA Pond is taken off-line and dredged every five to ten years, depending on the accumulated waste volume. 

The SDA Decantation Pond is re-lined (on the base and interior sidewalls) with two feet of compacted clay prior to 

each time it is used. Documented permeability tests indicate the specified permeability is 1 x 10-7cm/sec.

136 Solid Waste Permit #SP-02. An older landfill, active between 1984 and 1998, is lined with clay. According to 

EPA Minefill Site visit (2001), the 150-acre landfill has a life expectancy of 28 years and is divided into four cells, 

with cell one being active in 2001. There is a 2-foot compacted clay liner (permeability of less than 10-7cm/sec) and 

side-wall liners, as well as 100 feet of tight natural clays below the liner. The only water on the site is storm water 

runoff, but no water and/or leachate from the dry fill itself. The storm water is managed in two “zones:” (1) storm 

water in the CCR area stays onsite and is recycled for dust control on the landfill (the coarser bottom ash is also used 

as a cover for dust control), and (2) storm water outside of the CCR area is directed to a ditch and then pumped to an 

NPDES permitted pond with a 60 mil HDPE liner.

137 According to GEI (2011), the Antelope Valley Station is a dry ash facility. Raw water used in the power plant is 

pumped from Lake Sakakawea through a 42-inch-diameter pipe and stored in the raw water ponds located on the 

south side of the site. Water used in the power plant is discharged to the SDA Pond and is reused as make-up water

in the ash water system, the SO2 removal system, and coal handling dust suppression systems. AVS does not 

discharge water to any waterway and is not located on a waterway.

138 According to Basin Electric Power Cooperative comment to the proposed CCR rule, November 18, 2009, Pp. 18-

21, the Beulah Bed was mined (removed) beneath the landfill and is no longer present there. The landfill was located 

in this mined out area to take advantage of the existing mine pit. 

http://www.uswag.org/pdf/2010/CCR%20Comments/BasinElectric11192010pdf.pdf 
III. CCR Rejected Damage Cases December 2014

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In 2001, there were 13 ground-water monitoring wells that surround the perimeter of the older, closed 

landfill and the active landfill, although many of the monitoring wells are dry much of the time. AVS staff 

claim that the samples are spoil water and there has been no impacts to up gradient or down gradient 

ground water from the landfill. Core samples of the old landfill have demonstrated a lack of ground-water 

interaction with the CCRs.139

Groundwater has been evaluated onsite; however, no offsite monitoring has been required. According to 

North Dakota State Water Commission, no private drinking water wells exist within a two-mile radius of 

the Antelope Valley Station. However, the area surrounding the station is primarily agricultural, and there 

are privately-owned wells that are all used for irrigation. There are no surface water bodies nearby. 

The Beulah-Zap bed, which is about 140 feet above the base of the Tertiary-age Sentinel Butte Formation, 

is mined in the Beulah-Zap area north of the AVS. Except for the basal sand and the upper sand, the 

Sentinel Butte Formation is mostly inter-bedded silt, clay, and lignite. The Beulah-Zap bed, which is 

mined in central and western Mercer County, was one of only two lignite beds in the area that met the 

economic conditions (as of the mid-1970s) of both exceeding 10 feet in thickness an being within 100 feet 

of the surface.140

According to Croft (1973), a mantle of glacial drift deposited during the Pleistocene period overlies the 

Tertiary rocks of Mercer County. The drift in the uplands consists of till composed of unsorted silt, clay, 

sand, and gravel. In general, the till rarely exceeds 100 feet in thickness and yields little or no water. The 

major geological feature in the area is the Beulah Trench, a former glacial diversion channel.141 Such 

areas are characterized by relatively wide (0.5 to 1 .5 miles), flat floored valleys with small streams 

incapable of cutting such a valley. Similar ‘trenches’ generally have 200 to 280 feet of Pleistocene to 

Recent fill. Deposition in the meltwater trenches includes ice marginal stream deposits that were 

deposited as glacial ice advanced into the area, lake sediments that were deposited as streams were 

dammed by the advancing ice as well as by the receding ice margin, and outwash from meltwater as the 

ice melted. Since the glaciers left the area, Late Pleistocene to Recent slope wash from the valley walls 

has accumulated in the lowland areas.142, 143

An aquifer of regional significance, the Antelope Valley Aquifer, is located throughout the length of the 

Beulah Trench. The trench and aquifer run adjacent to the site to the west and north of the CCR landfill,

and directly below the power plant itself. The Beulah-Zap bed, a lignite formation that is used as a source 

of groundwater for drinking and livestock, runs beneath the landfill site. The bed slopes down to the west 

toward the Beulah Trench. Groundwater flow generally follows the bed from the site to the Beulah 

Trench. Well MP-22 is drilled into the aquifer flowing directly beneath the landfill, the Beulah-Zap bed. 

 

139 EPA Minefill Site visit (2001).

140 Croft (1973). According to EPA Minefill Site visit (2001), the mine has a 110-foot layer of overburden and a 17-

foot coal seam. Since 1998, the mine has relied on fly ash as a stabilizer in constructing onsite haul roads and 

dragline repair pads used for heavy equipment such as 290 ton coal trucks and the massive dragline.

141 This probably explains why, according to GEI (2011), none of the site’s design boreholes, including one that 

extends to nearly 220 feet, has reached bedrock: according to Croft (1973), the deposits forming the aquifer are less 

than one mile in width, and are about 250 feet thick. Subsurface soils underneath the AVS consist mostly of medium 

stiff to stiff sandy clays underlain by inter-bedded lenses of clays, sands and silts. Overlying the sand and gravel is 

about 20 feet of alluvium composed of dark sandy silt and clay.

142 Carlson (1973).

143 According to GEI (2011), construction drawings indicate that the Antelope Valley property was built up with fill 

to the current grades at the locations of the SDA Pond and SDA Decantation Pond. The SDA Pond appears to be 

excavated into the fill down to the natural soils, while the SDA Decantation Pond appears to be founded on the fill 

material.
III. CCR Rejected Damage Cases December 2014

38

The Beulah-Zap bed slopes down into the Beulah Trench, which is the formation that MP-12A and MP13B are drilled into.144

Impact: EIP (2010a) indicates that levels of arsenic exceeded the primary EPA Maximum Contaminant 

Level (MCL) in onsite groundwater. From 1984 through 2010, arsenic has increased at three down 

gradient wells to levels exceeding the federal MCL, up to 0.03 mg/L.145 These three wells are also among 

the four highest for boron concentrations. The increasing arsenic trends in three monitoring wells indicate 

that the arsenic is linked to the coal ash disposal. The correlation in MP-22 between the highest arsenic 

and boron levels at the site also indicates that coal ash is the source of increasing arsenic levels.

In response to EIP’s (2010a) claim that MP-22 also had the highest boron levels on-site (> 1.8 mg/L), 

Basin Electric (BE) contends146 that MP-22 is screened in a remnant of the Beulah Bed; therefore, TDS, 

sulfate, and boron levels have been consistently much higher in MP-22 than in most other wells at the 

site, and the elevated concentrations appear to be representative of naturally occurring spatial variation in 

regional groundwater quality. Similarly to Well MP-22, Well MW-1 SP is an up gradient well, screened 

in a remnant of the Beulah Bed.147 MW-1 SP typically has TDS values in the 6,000-7,000 mg/L range and 

sulfate at 2,500 mg/L. MW-1 SP also has historic arsenic levels of 0.01- 0.02 mg/L. This leads BE to 

conclude that MW-1 SP demonstrates that arsenic is naturally occurring in up-gradient groundwater at the 

site.

In response to EIP’s (2010a) assertions that arsenic levels have risen dramatically at three down gradient 

groundwater monitoring wells (MP-12A, MP- 138, MP-22) at the CCR landfill from 1984 through 2010, 

BE claims that TDS and sulfate, important ash leachate indicator parameters, have not increased in Wells 

MP-12A and MP-138 since monitoring began; it therefore appears the arsenic in groundwater is naturally 

occurring.

Finally, concerning EIP’s (2010a) ‘population at risk’ argument, BE claims that the North Dakota State 

Water Commission's Groundwater Data Query does not contain references to "public wells." Since 

groundwater flow is to the west, a well located "2.2 miles northeast of the station" would be up gradient 

of the site and thus could not be affected by the landfill. A well "located 4.4 miles southeast of the site" 

would similarly be up gradient and could not be affected by the landfill. USWAG claims that the site does 

not qualify as a damage case.148

Resolution/Remediation: No regulatory corrective actions, administrative rulings, or court decisions. 

According to EIP (2010a), the closed CCR landfill will remain in the post-closure monitoring phase 

through 2015.

 

144 EIP (2010a).

145 According to EIP (2010a), arsenic levels were first measured in on-site groundwater above the federal MCL in 

1986.

146 Basin Electric Power Cooperative comment to the CCR rule’s docket, ibid. 

147 According to Croft (1973), water from the lignite aquifers is highly variable in its chemical quality: conductivity 

measurements of several hundred water samples generally range from 500 to 7,000 micromhos per centimeter; water 

samples from wells 145-86-1 1CDD and 146-88-10DDC were soft and very hard , respectively, and contained 1,050 

and 1,810 ppm total dissolved solids. The samples contained 3.6 and 3.3 ppm iron and 0.2 and 0.4 ppm fluoride, 

respectively. The water was commonly reddish brown, because of organic compounds.

148 Comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211), November 14, 2011: “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.”
III. CCR Rejected Damage Cases December 2014

39

Evaluation:

149 ”Groundwater exceedances of the primary EPA MCL for arsenic 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. There are no regulatory corrective actions, administrative rulings, or court decisions 

associated with the site.”

Rationale for Rejection: Landfill located in a mined out lignite pit.

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, Case # 19, 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 #19. ICF, October 2010.

Basin Electric (2009a): Basin Electric Power Cooperative Response to a Request for Information under 

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

U.S.C. 9604(e), March 24, 2009. Accessed Online March 2013. 

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys/basin-elect.pdf

Basin Electric (2009b): Basin Electric Power Cooperative Response to a Request for Information under 

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

U.S.C. 9604(e), August 27, 2009. Accessed Online March 2013.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys/basin-elect2.pdf

GEI (2011): Specific Site Assessment for Coal combustion Waste Impoundments at Basin Electric 

Antelope Valley Station, Beulah, North Dakota, GEI Project 092884, March 2011. Accessed Online 

March 2013. 

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/basin-antelope-final.pdf

Croft (1973): Ground-Water Resources, Mercer and Oliver Counties, North Dakota, M.G. Croft, U.S. 

Geological Survey; County Ground Water Studies 15 – Part III, North Dakota State Water Commission, 

and Bulletin 56 – Part III, North Dakota Geological Survey. Accessed Online January 2013.

http://www.swc.nd.gov/4dlink9/4dcgi/GetSubContentPDF/PB-301/MercerOliver_Part_3.pdf

Carlson (1973): Geology of Mercer and Oliver Counties, North Dakota, C. G. Carlson, North Dakota 

Geological Survey, Grand Forks, North Dakota, 1973. Bulletin 56 — Part I, North Dakota Geological 

Survey, County Ground Water Studies 15 — Part I, North Dakota State Water Commission. Accessed 

Online January 2013.

http://www.swc.nd.gov/4dlink9/4dcgi/GetSubContentPDF/PB-297/MercerOliver_Part_1.pdf

EPA Minefill Site visit (2001): U.S. EPA Site Visit Report Coal Combustion Waste Minefill 

Management Practices - North Dakota - Draft Final Report, December 11, 2002. Accessed Online April 

2013.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/sites/nd-visit.pdf

 

149 ICF (2010).
III. CCR Rejected Damage Cases December 2014

40

R10. Industrial Excess Landfill (IEL) Superfund Site, Uniontown, Stark County, Ohio

Type: Landfill in a Sand and Gravel Pit. 

Background and Description: The Industrial Excess Landfill (IEL) Superfund Site located in Lake 

Township southeast of Uniontown and about ten miles southeast of Akron, Ohio began receiving wastes 

in the early 1960s. The landfill area covers approximately 30 acres and was a sand and gravel pit prior to 

1959. It is estimated that one million tons of CCRs were disposed of in this unlined landfill in the mid1960s,150 and then in the late 1960s through the 1970s, approximately one million gallons of industrial 

organic chemical liquid wastes were dumped into an evaporation lagoon (impoundment) constructed 

onsite. In addition to the industrial wastes, hospital wastes, septic tank wastes, and general public wastes 

were disposed of in the landfill. Chemical wastes were no longer dumped after 1972 and the landfill was 

closed in 1980 and covered with sand and gravel. In 1986, the site was listed on the EPA’s National 

Priorities List (NPL) as a Superfund site.151 Groundwater has been monitored both onsite and offsite. 

The IEL landfill is in a complex hydrogeologic setting with 50 to 140 feet of unconsolidated glacial kame 

moraine sand and gravel deposits on top of basal glacial till, overlying sand and gravel deposits. A 

southwest - northeast bedrock sandstone ridge beneath the landfill is flanked by two parallel valleys filled 

with sand and gravel outwash. A basal till approximately 5 to 10 feet thick lies on top of the sand and 

gravel outwash in the area of the landfill. The sand and gravel mined at the landfill was from kame 

moraine deposits up to about 60 feet thick overlying the basal till. Three aquifers are present in the area of 

the landfill: (1) a perched water table in the kame moraine deposits, separated by a basal till152 from the 

(2) intermediate, artesian aquifer in the outwash sand and gravel below the basal till; and (3) a deep 

aquifer in the sandstone.153 Mounding of the perched water table in the area of the landfill causes 

groundwater to flow in all directions from the landfill.154 The general direction of groundwater flow in the 

 

150 According to EIP (2010a), in the mid-1960s, coal fly ash was the primary waste placed at the landfill. The 

northwest and north-central portions of IEL were lined with fly ash (ATDSR, 1989). Approximately one-third of the 

IEL landfill is filled with coal ash from industrial boilers in the Akron/Canton area. This represents an estimated 

450-acre feet of coal ash totaling up to about 1 million tons. 

151 According to EIP (2010a), USEPA’s remedial actions at the IEL landfill have focused almost exclusively on 

contamination by volatile organic chemicals (VOCs), and no mention is made in documents posted on USEPA 

Region 5’s website that CCR was a significant source of groundwater contamination by metals at the site (USEPA 

Region 5, 2010). EIP (2010a) presents evidence, which supports the conclusion that coal ash at the IEL site is either 

exclusively or the predominant source of the extensive metals contamination documented at the site.

152 According to Jackson et al., (1989) the till layer has an effective permeability of 1 x 10-6

cm/sec.

153 For the spatial relations among the three aquifers, see Jackson et al., (1989), Figure 9.

154 However, according to a July 29, 2004 report: Review of Hydrogeologic & Other Site Documentation Industrial 

Excess Landfill (IEL) Superfund Site, Uniontown, Ohio, P.E. LaMoreaux & Associates, Inc. 

(http://www.epa.gov/region5/cleanup/iel/pdfs/iel_ombudsman_report_20040929.pdf), following a revised 

interpretation of flow conditions by Sharp & Associates, Inc. after the elimination of several monitoring points, the 

area of mounding no longer existed and the flow pattern was consistently from east to west across the site, and then 

turning northwesterly in the area of the bedrock valley. 

However, it is also important to recognize that groundwater flow and recharge conditions during the time of 

waste placement were likely much different than what occurs ‘today’ (namely, 2004). Before the final soil cover was 

added in 1980, the open pit landfill would have served as a local recharge area for the shallow groundwater system. 

At that time, it is possible that localized mounding of groundwater beneath the landfill was occurring due to 

increased infiltration of surface water into the aquifer. This recharge could have acted as a flushing mechanism to
III. CCR Rejected Damage Cases December 2014

41

middle aquifer is to the west and south. The apparent direction of groundwater flow in the sandstone unit 

is to the south. The sand and gravel aquifers are highly permeable (groundwater flow as high as 6 

feet/day), allowing contaminants from the IEL site to quickly move off-site once they enter the 

groundwater system. 

A 2005 well map identifies about 90 private wells within 1,500 feet of the IEL site where some 

groundwater sampling data are available. In the late 1980s, an estimated 2,500 to 3,000 people lived 

within a one-mile radius of the IEL site.155 A narrow corridor of 100 homes west of IEL received free 

hook-ups to public water to replace wells that were contaminated. Residents northwest and southwest, 

who may have had contaminated wells, were required to pay a $5,000 hook-up fee, which not all 

homeowners could afford. It is possible that 30% the residents near IEL still use private wells. At least 

two of the four private wells where technetium-99 was found in 2005 were used for drinking water at the 

time of sampling.

Impact: Complaints began as early as 1971 when the public voiced concerns about pollution. According 

to ATSDR (1989), the waste disposal actions have resulted in on-site contamination of soil, groundwater, 

soil gas, surface water, and sediments.156 EIP (2010a) indicates that exceedances of MCLs for antimony, 

arsenic, chromium, and lead were discovered in nine wells when the first systematic groundwater 

sampling occurred in May 1987. EIP (2010a) claims that levels of antimony, arsenic, barium, beryllium, 

chromium, lead, mercury, nickel, radium, and thallium exceeded primary EPA Maximum Contaminant 

Levels (MCLs) in both onsite and offsite groundwater. Additionally, several other constituents exceeded 

federal standards and/or action levels in both onsite and offsite groundwater.157 Exceedances of metals 

and radionuclides have continued to be measured in on-site and off-site wells through 2001, the most 

recent sampling data available. However, soil radionuclide measurements in an area about 100 feet west 

of the IEL site fence in December 2003 showed normal radioactivity levels.158

Evaluation against Proven Damage Criteria

 

move contaminants through the landfill debris and down into the groundwater system during the years that the 

landfill was an open pit and accepting wastes (~1964-1980).

155 ATSDR (1989).

156 For a full list of chemicals detected in the site’s surface soils, see EPA ROD (1987), Tables 3, 4, and 5.

157 According to EIP (2010a) and the EarthJustice comment to the proposed CCR rule’s docket (EPA-HQ-RCRA2009-0640-6315), metals where drinking water standards have been exceeded (maximum exceedances in 

parentheses) include: antimony (52 times the federal standard), arsenic (13 times the federal standard), beryllium (30 

times the federal standard), cadmium (53 times the federal standard), chromium (17 times the federal standard), lead 

(47 times USEPA’s action level), thallium (6.5 times the federal standard), and nickel (12.4 times USEPA’s former 

MCL). In 1987 USEPA required 100 homes west of the site to be provided with free public water. Yet despite the 

OH EPA’s assertion that metal concentrations were rising in contaminant plumes from the site in the mid-1990s, 

USEPA determined that this cleanup remedy was complete in 2005 without remediating contamination flowing 

from the landfill to the north and south into neighborhoods. EarthJustice (ibid) claims that wells located as far as 

1,000 feet offsite to the north have had exceedances of MCLs for cadmium, chromium, lead, selenium, and thallium 

in samples collected from 1997 to 2001, yet 19 monitoring wells were decommissioned in 2004, including eight 

where exceedances have occurred in residential areas not provided with public water. In fact, analysis for metals was 

stopped at all remaining monitoring wells in 2004. Residents in these areas who cannot afford a hook-up fee 

continue to use private wells and face potentially daily exposure to high levels of toxic metals.

158 EPA (2004).

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels (MCLs) 

 Offsite groundwater exceeded primary EPA MCLs for 

antimony, arsenic, barium, beryllium, chromium, lead, 

mercury, nickel, radium, and thallium.
III. CCR Rejected Damage Cases December 2014

42

Resolution/Remediation: In October 1986, the EPA added the landfill to the NPL as a Superfund

site.159 Residential well sampling performed in 1987 showed that private wells were being impacted by 

groundwater contaminated by volatile organic contaminants (VOCs) and USEPA installed air strippers in 

the affected residences. That same year, the EPA signed a Record of Decision (ROD) to supply public 

water supply hook-ups to over 100 homes for free.160 The EPA signed a second ROD in 1989 selecting 

actions to clean up the site, which included covering the entire site with a multi-layer cap, expanding the 

landfill gas extraction and treatment system, extracting and treating contaminated groundwater; and 

pumping groundwater to maintain the water table at a level that is below that of the wastes in the 

landfill.161

According to EIP (2010a), USEPA used the results of monitoring data collected in March 1997 and 

September 1998 to justify removing the pump-and-treat remediation system. In September 2002, a final 

remedy was selected that eliminated the original ROD action of covering the entire site with a multi-layer 

cap, and implemented Monitored Natural Attenuation (MNA).162 USEPA also allowed the existing gas 

extraction and treatment system at the landfill to be shut down in 2005. Other than ongoing monitoring, 

remedial activities were completed in May 2005.163 

 

159 US EPA Region 5 (No date).

160 EPA ROD (1987).

161 EPA ROD (1989).

162 EPA ROD Amendment (2002). The April 2002 Proposed Amendment to the Cleanup Plan

(http://www.epa.gov/region5/cleanup/iel/pdfs/iel_fs_proposed_plan_200204.pdf) was based on the results of the 

groundwater sampling from August 2000 to September 2001. These results showed the following trends, indicating 

an ongoing natural attenuation of the organic compounds: (i) of the 80 original organic compounds, only 23 were 

detected; of these, only benzene, vinyl chloride, and 1, 2 dichloroethane exceeded drinking water standards in 

certain onsite monitoring wells. No VOCs exceedances were detected offsite. (ii) The concentration of metals in 

groundwater onsite and offsite appeared to have decreased. In 1998, several metals exceeded drinking waters 

standards within and outside the landfill. However, according to the September 2001 survey, only thallium and 

arsenic were detected above the drinking waters standards, and with the exception of one offsite exceedance of 

thallium, all these exceedances occurred onsite.

163 US EPA Region 5 (No date).

or other health-based standards measured in 

groundwater at sufficient distance from the 

waste management unit to indicate that 

hazardous constituents have migrated to the 

extent that they could cause human health 

concerns

 Onsite groundwater exceeded primary MCLs for 

antimony, arsenic, barium, beryllium, chromium, lead, 

mercury, nickel, radium, and thallium.

Criterion 2: Where a scientific study provides 

documented evidence of another type of 

damage to human health or the environment 

(e.g., ecological damage)

 The surrounding neighborhoods have shown a high 

cancer incidence rate and one neighborhood has reported 

cancer in nearly every home.

Criterion 3: Where there has been an 

administrative ruling or court decision with an 

explicit finding of specific damage to human 

health or the environment

 The EPA added the site to the NPL as a Superfund site in 

1986.

 The EPA signed a ROD in 1987 to supply free public 

water to over 100 homes.

 The EPA signed a second ROD in 1989 to clean up the 

site and deemed remedial actions complete in 2005. 
III. CCR Rejected Damage Cases December 2014

43

Groundwater monitoring has been conducted at the IEL site on fifteen different occasions since the 2002 

ROD Amendment.164 The most recent sampling events occurred in: May 2006, August 2007, May 2008, 

March 2009, and December 2010. When the RI was completed at IEL in 1988, as many as 81 different 

volatile organic compounds were detected in the groundwater at the site. In 2010, only 13 organic 

compounds were detected at IEL. The data appear to show that natural attenuation is occurring at the 

site.165

Evaluation:166 ”Not a damage case. Although there are numerous exceedances of primary and secondary 

EPA MCLs in both onsite and offsite groundwater, high incidences of cancer in the surrounding 

neighborhoods, and several regulatory actions, there are no explicit indications that CCRs are solely 

responsible for the damages. Large quantities of other non-CCR wastes have been co-managed at the 

landfill since the 1960’s.”

OH EPA supports this conclusion by stating that this U.S. EPA Superfund landfill received various 

industrial wastes and is not representative of Ohio CCR disposal sites,167 as does USWAG.168

Rationale for Rejection: (i) CCR originated in industrial, not-utility boilers; and (ii) CCR was comanaged in a mixed-waste landfill, including a large variety of other (including Hazardous) waste types.

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 #25. ICF, October 2010.

US EPA Region 5 (No date): US EPA Region 5 Cleanup Sites. Accessed Online March 2013. 

http://www.epa.gov/Region5/sites/iel/index.htm

Jackson et al., (1989): Hardy Road Landfill and Industrial Excess Landfill, A Superfund Site, Jim L. 

Jackson, James R. Bauder, James Hardy, And Mark S. Kennedy, Field Studies: Center for Environmental 

 

164 EPA ROD Amendment (2000).

165 EPA (2010).

166 ICF (2010).

167 OH EPA comments to the CCR proposal (EPA-HQ-RCRA-2009-0640-8226) and the 2011 NODA (EPA-HQRCRA-2011-0392-0163) dockets.

168 USWAG’s comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211), November 14, 2011: “This 

case does not meet the criteria for a CCR damage case because the alleged environmental damage at the site was not 

tied to CCRs. The damage allegations are for a non‐utility, third‐party site containing mixed waste with an estimated 

one‐third of the landfill volume attributable to CCRs. The alleged damage was largely a result of other non‐CCR 

waste management activities. There are multiple responsible parties for the site including industrial facilities that 

utilized the IEL for disposal of millions of tons of mixed chemical and industrial waste. This site received mixed 

industrial wastes, fly ash, and general public wastes from multiple responsible parties. Industrial facilities utilized 

the landfill for disposal of millions of tons of mixed chemical and industrial waste. Off‐site impacts to groundwater 

have not been attributed by USEPA to any one waste source in the landfill. CCRs were from non‐utility company 

sources and constituted an estimated one‐third of landfill volume versus two‐thirds of volume being from chemical 

wastes, hospital wastes, and other sources. An on‐site lagoon for industrial organic chemical wastes also operated at 

the landfill site.”
III. CCR Rejected Damage Cases December 2014

44

Studies, The University of Akron. Ohio Journal of Science Vo. 89 (3), pages 45-55, 1989. Accessed 

Online March 2013.

https://kb.osu.edu/dspace/bitstream/1811/23315/1/V089N3_045.pdf

ATSDR. 1989. Public Health Assessment for Industrial Excess Landfill Uniontown, Stark County, Ohio 

CERCLIS No. ODD000377911, July 21, 1989. Accessed Online March 2013.

http://www.atsdr.cdc.gov/HAC/pha/IndustrialExcessLandfillOhio/IndustrialExcessLandfill07211989.pdf

EPA (2010): Superfund Third Site Progress Profile: Industrial Excess Landfill. Accessed Online March 

2013.

http://cfpub.epa.gov/supercpad/cursites/csitinfo.cfm?id=0504014#ContamExp

USEPA Region 5 (2010): IEL Superfund Site. Accessed Online March 2013. 

http://www.epa.gov/Region5/sites/iel/index.htm. 

EPA ROD (1987): EPA Superfund Record of Decision: Industrial Excess Landfill, EPA ID: 

OHD000377911, OU 02, Uniontown, OH, 09/30/1987. EPA/ROD/R05-87/056, 1987. Accessed Online 

March 2013.

http://www.epa.gov/superfund/sites/rods/fulltext/r0587056.pdf

EPA ROD (1989): EPA Superfund Record of Decision: Industrial Excess Landfill, EPA ID: 

OHD000377911, OU 01, Uniontown, OH, 07/17/1989. EPA/ROD/R05-89/098, 1989. Accessed Online 

March 2013.

http://www.epa.gov/superfund/sites/rods/fulltext/r0589098.pdf

EPA ROD Amendment (2000): EPA Superfund Record of Decision Amendment: Industrial Excess 

Landfill, EPA ID: OHD000377911, OU 01, Uniontown, OH, 03/01/2000. EPA/AMD/R05-00/162, 2000. 

Accessed Online March 2013.

http://www.epa.gov/superfund/sites/rods/fulltext/a0500162.pdf

EPA ROD Amendment (2002): EPA Proposes Amendment to the Cleanup Plan for Industrial excess 

Landfill, Uniontown, Ohio, April 2002. Accessed Online March 2013.

http://www.epa.gov/region5/cleanup/iel/pdfs/iel_fs_proposed_plan_200204.pdf

EPA (2004): Samples near IEL Site Show Only ‘Background’ Radiation. Industrial Excess Landfill Site, 

Uniontown, Ohio, April 2004. Accessed Online March 2013.

http://www.epa.gov/region5/cleanup/iel/pdfs/iel_fs_200404.pdf

R11. Boardman Plant – Portland General Electric (PGE), Boardman, Morrow County, 

Oregon

Type: Landfill, Cooling Water Reservoir and Wastewater Ponds. 

Background and Description: The Boardman Plant, located in Boardman, Oregon, has received CCRs 

from the Portland General Electric Company (PGE) since the mid-1970s.169 The site contains several 

 

169 The Boardman Power Plant (BPP) is a nominal 550-megawatt coal fired electric generating facility located on 

Tower Road in northern Morrow County. The original Site Certificate for the Boardman Power Plant was executed 

on March 24, 1975. The Boardman Plant was placed into service on August 3, 1980. The Plant uses annually over 

2.5 million tons of low‐sulfur, sub‐bituminous coal from the Powder River Basin (Lewis et al., 2012).
III. CCR Rejected Damage Cases December 2014

45

CCR disposal areas, including a lined 40 acre landfill, the 1,500 acre closed-loop cooling water Carty 

Reservoir,170 and six industrial wastewater ponds, two of which are lined.171 The reservoir is 

approximately three miles long and also accepts liquid industrial wastes. Groundwater and surface water 

have been evaluated onsite; however, no offsite assessment or monitoring has been required. 

According to EIP (2010a), Portland General Electric Company (PGE), the owner of Boardman Plant, has 

argued that seepage from the Carty Reservoir has created widespread, perched aquifer conditions, and that 

this seepage is responsible for shallow groundwater in coal ash disposal area wells located approximately 

2,000 feet away from the reservoir. PGE has also argued that Reservoir seepage has higher quality than 

naturally occurring groundwater. If these assertions were true, then the quality of groundwater in these 

wells would be similar to that of the reservoir. However, a comparison of 2009 data from groundwater 

wells at the coal ash disposal area with data from the Reservoir from 1981-1987 suggests that 

groundwater in the coal ash disposal area has been contaminated by CCR and is not similar to Reservoir 

water.

The site’s groundwater monitoring system leaves much to be desired: there is no potentiometric map, nor 

a determination of groundwater flow rate, and PGE has not established up gradient and down gradient 

wells for any disposal unit. In fact, the monitoring system at the Carty Reservoir includes only one well; 

the evaporation pond to the north includes only one well; and the industrial waste ponds, including those 

located between the reservoir and the plant, include no wells. Thus, the groundwater monitoring and 

sampling program does not comply with current Oregon rules.172 

A shallow, perched aquifer occurs beneath the plant area atop the Pomona Basalt formation due to 

seepage and infiltration of surface water of the Carty Reservoir. Dramatic changes in groundwater 

elevations in Well 052 and Well 120 suggest that increased groundwater infiltration has resulted from the 

coal ash disposal area.173 The five monitoring wells at the plant’s coal ash disposal area and near the 

 

http://www.oregon.gov/energy/Siting/docs/BCP/BCP_proposed_order_amend_9_022813.pdf. 

Early in December 2010, Oregon’s Environmental Quality Commission approved PGE plan to close the state's only 

coal-fired power plant (and Oregon’s largest stationary source of haze-causing pollutants) by December 31, 2020 in 

exchange for a far smaller investment in pollution controls. 

http://www.oregonlive.com/business/index.ssf/2010/12/pges_coal-fired_boardman_plant.html. PGE is considering a 

variety of biomass options as possible replacement fuel sources, including the high‐yield biomass crop Arundo 

donax, which has the potential to serve as a significant source of locally accessible, closed‐loop biomass to power 

the Boardman facility after 2020 (Lewis et al., 2012).

170 The Carty Reservoir draws water from the Columbia River and provides Boardman with cooling water, fire water 

and make-up water for the boiler. http://www.oregon.gov/energy/Siting/docs/BCP/BCP1OEMP.pdf

171 According to EIP (2010a), aerial photography and recent annual groundwater report indicate that at least six

industrial wastewater ponds and three sewage lagoons exist on the Plant property – in addition to the Carty

Reservoir. Four ponds located south of the Boardman Plant and between it and Carty Reservoir are used to settle 

bottom ash from transport water prior to discharge into Carty Reservoir. Two other ponds north of the Plant are used 

to evaporate water softening treatment wastewater and laboratory wastes. Three other ponds - located just northwest 

of the Plant and the coal pile- are domestic sewage lagoons.

172 According to EIP (2010a), Oregon Groundwater Quality Protection Rules OAR 340-040 require that a 

monitoring system “be capable of determining rate and direction of groundwater movement”, and that both up

gradient and down gradient groundwater quality be determined. These rules also would have required a Preliminary 

Assessment Plan within 30 days of a “significant increase” in groundwater parameters if immediate re-sampling did 

not indicate invalid results. 

173 According to EIP (2010a), well 052, located 250 yards to the northeast of the coal ash disposal area and almost 

700 yards feet from the Carty Reservoir, was initially too dry (less than 1-foot of static water level) to sample when 

it was installed in 1980 but by 1985, the water level had risen almost 19 feet. From 1986 to 1996, the water level 

continued to rise to a current stabilized 40-foot water column. Groundwater in Well 120, 25 yards south of the coal 

ash disposal area and almost 700 yards from the Carty Reservoir, was not found until 1987, seven years after the 
III. CCR Rejected Damage Cases December 2014

46

reservoir are screened in this perched Pomona Basalt zone. Well 130, located at the industrial waste 

evaporation ponds to the north, is screened in the shallow Elephant Basalt formation above the Pomona 

Basalt and PGE reports that it is too dry to sample. The main groundwater aquifer occurs 350 feet below 

the plant in the Columbia River Basalt formation. The deepest well at the Boardman Plant is 108 feet 

deep, and the average depth of wells that produce water is 81 feet. Thus the deeper Columbia River Basalt 

regional aquifer is not monitored for any effect from the plant operations. 

Impact: EIP (2010a) indicates that levels of arsenic exceeded the primary EPA Maximum Contaminant 

Level (MCL) in onsite groundwater. Additionally, total dissolved solids (TDS) exceeded the secondary 

EPA MCL (SMCL); selenium and TDS exceeded the Oregon Numerical Groundwater Quality Reference 

Levels, and vanadium exceeded health-based standards (from Florida and Minnesota) in onsite 

groundwater.174

Evaluation against Proven Damage Criteria

 

well was first installed. Groundwater elevations then rose by 9 feet in Well 120 and have remained constant since 

1997.

174 According to EIP (2010a), selenium concentrations have reached 0.019 mg/L (1.9 times the Oregon Numerical 

Groundwater Quality Reference Level) in two wells; and vanadium concentrations have risen to 0.126 mg/L in three 

wells (2.5 times the Oregon Reference Level) in recent groundwater monitoring. In addition, while TDS

has remained relatively constant at the Reservoir (213 mg/L average, 261 mg/L maximum), it has been much higher 

at Well 052 (647 mg/L average, 734 mg/L maximum) and Well 053 (639 mg/L average, 952 mg/L maximum) and 

highest closest to the coal ash disposal area at Well 120 (846 mg/L average, 1,073 mg/L maximum). TDS 

concentrations have exceeded the federal SMCL (500 mg/L) as well as the Oregon Numerical Groundwater Quality 

Guidance Level in each of the three wells at the coal ash disposal area for every annual sampling event for more 

than two decades (Well 052, 25 years; Well 053, 29 years; and Well 120, 23 years).

Criteria Evaluation

Criterion 1: Documented exceedances of 

primary maximum contaminant levels (MCLs) 

or other health-based standards measured in 

groundwater at sufficient distance from the 

waste management unit to indicate that 

hazardous constituents have migrated to the 

extent that they could cause human health 

concerns

 Onsite groundwater exceeded the primary EPA MCL for 

arsenic.

 Onsite groundwater exceeded the EPA SMCL for TDS, the 

Oregon Numerical Groundwater Quality Reference Levels 

for selenium and TDS, and health-based standards (from 

Florida and Minnesota) for vanadium in onsite groundwater.

 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
III. CCR Rejected Damage Cases December 2014

47

Other Considerations175

 It should be noted that the EPA MCL exceedances for arsenic were observed across the reservoir 

away from the landfill and wastewater ponds, and could be a related to 

farming/livestock/agricultural activity rather than CCR-related sources. 

 The reservoir accepts also industrial liquid wastes. 

 Groundwater in the area is used for commercial irrigation and water supply. There are reportedly 

14 wells for irrigation, 19 wells for private water supply, and 18 wells for livestock watering 

within five miles of the site. 

 Numerical Groundwater Quality Reference Levels are not health-based, and the health-based 

standard for vanadium cited in EIP (2010a) is not applicable to the state of Oregon, where the site 

is located. 

Resolution/Remediation: According to EIP (2010a), the Site Certificate Agreement that set the 

environmental monitoring and discharge conditions for this Plant is based upon a 1975 version of Oregon 

Administrative Rules Chapter 345, Division 26, “Construction and Operation Rules for Thermal Power 

Plants”. The Certificate Agreement is handled by the Oregon Department of Energy (ODOE). PGE has 

approached ODOE in 2003 and 2004 to reduce both the number of parameters sampled and water 

monitoring requirements.176 Water discharges are regulated under Water Pollution Control Facilities 

Permit (No. 100189) based on criteria established in 1975. EIP (2010a) cites the Oregon Department of 

Environmental Quality (ODEQ) to the effect that no assessment of the contamination long evident at this 

site has been required because no such requirement was included in the Site Certificate when the 

Certificate was first approved in 1975.

There are no regulatory corrective actions, administrative rulings, or court decisions associated with the 

coal ash disposal units.

Evaluation:177 ”Inadequate Information. Groundwater exceedances of primary and secondary EPA 

MCLs have been found onsite but at distance and up gradient from CCR materials. There is inadequate 

information to determine whether exceedances are site- related, from offsite sources, or from on-site but 

non-CCR sources. 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 coal ash disposal units.”

USWAG claims that this site does not qualify as a damage case.178

Rationale for Rejection: Inadequate Information to determine whether CCRs are the source term of the 

reported contamination.

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

 

175 ICF (2010).

176 ODOE, (2010).

177 ICF (2010).

178 USWAG’s comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211), November 14, 2011: “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.”
III. CCR Rejected Damage Cases December 2014

48

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

Appendix C, Case #28. ICF, October 2010.

ODOE (2010): Oregon Department of Energy, Energy Facility Site Certificate for Boardman Coal Plant, 

2010. Accessed Online March 2013.

http://www.oregon.gov/ENERGY/SITING/BCP.shtml

Lewis et al., (2012): Using Closed-loop Biomass to Displace Coal at Portland General Electric’s

Boardman Power Plant: Carbon Implications, Mark Lewis, Manuel Garcia-Perez, Bill Pan, Don Horneck, 

Don Wysocki, and Robert Bass, University of Washington, Washington State University, Oregon State 

University, and Portland State University, July 7, 2012. Accessed Online March 2013.

http://oregonstate.edu/dept/hermiston/sites/default/files/arundo_-_carbon_implications_-_final_5.pdf

R12. Big Stone Power Plant – Otter Tail Power, Big Stone City, Grant County, South 

Dakota

Type: Landfill, Boiler Slag Impoundment, and Process Water (Cooling-, Evaporation-, Holding-, and 

Brine) Ponds.

Background and Description: The Big Stone Power Plant (BSP) is located in a rural area west of Big 

Stone Lake and approximately one mile northwest from Big Stone City, South Dakota.179, 180 The BSP 

consists of the following waste management units, which are subject to its solid waste permit: Ash 

Disposal Area (ADA) (a CCR monofill), unlined ash landfill runoff pond, unlined (?) bottom slag 

pond,181 two unlined lime sludge water softener ponds,182 two brine ponds that are composite lined with

 

179 According to Barr (2010), Coteau des Prairie plateau of the Central Lowlands physiographic province. 

Topography is gently rolling to flat with drainage toward the south and east within the Minnesota River Basin. Big 

Stone Lake, as well Lake Transverse to its north, both occupy Traverse Gap, an extinct glacial spillway outlet of the

Pleistocene Lake Agassiz. See http://en.wikipedia.org/wiki/Traverse_Gap, Figure 1 in 

http://www.eeescience.utoledo.edu/Faculty/fisher/Fisher/Publications_files/Fisher_QR03.pdf, and Section 5 in 

http://www.webpages.ttu.edu/dleverin/quaternary_envs/quaternary_environments.html.

180 Established in 1975, the BSP has one generating unit with a capacity of 456 MW; it is fueled by Powder River 

Basin Sub-bituminous coal. (http://www.sourcewatch.org/index.php/Big_Stone_Power_Plant). In May 2012, Otter 

Tail Power announced plans for installing air emission controls (selective catalytic reduction to reduce emissions of 

NOx, a dry scrubber to reduce SO2, and a new baghouse to improve particulate control) at the BSP within up to five 

years, to comply with regulations to limit air pollutants that cause haze in the Boundary Waters Canoe Area 

Wilderness (https://www.otpco.com/NewsInformation/NewsReleases/Pages/Notice201252115435.aspx). 

Immediately to the south of the BSP is Poet Biorefining - Big Stone. Poet Biorefining has been operating since June 

2002 to produce annually (since 2007) 79 million gallons of ethanol (http://www.poetenergy.com/bigstone). BSP 

supplies the Poet plant with process steam as well as other support services including water for fire protection and 

process water and rail system. 

181 According to South Dakota Department of Environmental Resources’ (SD DENR) comment to the proposed 

CCR Rule’s docket (http://www.uswag.org/pdf/2010/CCR%20Comments/SDDENR112010.pdf), the small boiler 

slag sluice pond, located west of the Existing Brine Pond, is used for the temporary storage of slag until the slag is 

removed and dried prior to being shipped offsite for recycling or hauled in dry form to the nearby dry tomb landfill. 

182 According to SD DENR (Undated), the two lime drying beds are located approximately 150 yards southwest of 

the power plant and southeast of the coal stockpile area. The lime sludge drying beds were constructed using clay 

soils, but not to any specific compaction or seepage requirement.
III. CCR Rejected Damage Cases December 2014

49

an under drain collection system,183, 184 and an inert construction/ demolition debris landfill. The 

following three process-water ponds, associated with the BSP’s closed-cycle cooling system:185 Cooling 

Pond, Evaporation Pond, and Holding Pond 186 are not included in the BSP’s solid waste permit, nor do 

they have a surface water or groundwater discharge permit.187 Both the Cooling and Evaporation Ponds 

are each nearly a mile wide, and the Cooling Pond occupies about 145 hectare. Groundwater monitoring 

on the site consists of 25 wells,188 though the Lime Sludge Ponds and the northern and eastern edges of 

the Cooling or Evaporation Ponds are not monitored. No offsite groundwater data is available. 

The surficial geology is composed of Late Wisconsin-age Des Moines Lobe glacial till.189 The glacial till 

is clayey with generally low permeability, although locally higher permeability sand and silt seams are 

present within the clay. Underlying units comprise Late Cretaceous-aged sedimentary rocks190 deposited 

in terrestrial alluvial, tidal, and deeper marine environments. The Precambrian-age Milbank Granite 

outcrops to the south of Big Stone City and is likely present under the sedimentary rocks at the BSP. 

 

183 According to Barr (2010), the Existing Brine Pond (EBP) was constructed in 1998, the same year in which the 

old brine pond was closed. The New Brine Pond (NBP) was constructed in 2007. Both active brine ponds were 

constructed with a liner of high density polyethylene (HDPE). The liner for the Existing Brine Pond was placed over 

a compacted native clay while the New Brine Pond has a composite liner system composed of HDPE over a two 

foot compacted clay layer. The brine ponds also have under-drain systems that are designed to relieve hydrostatic 

pressure under the liner.

184 The two newer brine ponds were constructed within the footprint of an older brine pond. The predecessor, 12-

acre brine pond was originally constructed with a compacted native clay liner that was exposed to frost, desiccation, 

and plant rooting for an extended period of time, resulting in some seepage of the pond contents to groundwater.

185 For location of the waste units and the water process ponds, see 

http://denr.sd.gov/des/wm/coalash/MQ%20map.jpg. According to SD DENR (No date), ‘the power plant withdraws 

lake water from Big Stone Lake each year and fills the cooling pond to a predetermined level. The plant pulls water 

out of the cooling pond for use in the plant and the non-contact cooling water is discharged back into the cooling 

pond. Every so often, the power plant pumps water out of the cooling pond and into the evaporation pond to let it 

evaporate. When additional capacity is needed, water out of the evaporation pond is pumped into the holding 

pond... from the holding pond, water is passed through the brine concentrator which removes undesirable 

constituents from the water and discharges them into the brine ponds. Relatively pure water, demineralized by the 

brine concentrator, is then available for reuse by the plant. The mineralized sludge from the brine concentrator 

collects in the brine ponds where solids settle out and the brine supernatant evaporates. (There is) no specific 

information about liner construction for the cooling pond and evaporation pond....the holding pond was originally 

constructed to waste water pond standards that allowed seepage up to 1/16 inch/day...the water in these ponds is 

non-contact cooling water.’

186 According to U.S. DOE EIS, (2009), the Plant site does not discharge any process water to the surface drainage 

system. The Plant operates with a South Dakota water appropriation permit that allows withdrawal of up to 8,000 

acre-feet per year from Big Stone Lake.

187 According to Barr (2010), the facility’s total permitted area is 216 acres, of which total active disposal occurs 

over approximately 23.1 acres.

188 According to Barr (2010), the monitoring network at the BSP addresses three hydraulically distinct areas at the 

Facility: the Ash Disposal Area (ADA: detection monitoring through the H wells), the Brine Pond Area (assessment 

monitoring through the BC wells on brine ponds’ perimeter and S wells further down gradient), and the process 

water ponds (general monitoring of the holding pond’s down gradient area through wells 10, 11, and 12). Process 

water ponds and deeper aquifer wells are monitored voluntarily at the discretion of Otter Tail Power. Monitoring of 

these ponds/wells is not required by the Facility permit. Likewise, because the Lime-Sludge Ponds accept only inert 

materials they do not require groundwater monitoring under the permit.

189 For the location of the Des Moines Lobe and the Big Stone Moraine in reference to the Pleistocene Agassiz Lake 

overflow outlet, see Figure 1 in http://homepages.utoledo.edu/tfisher4/Publications_files/Fisher_Boreas04.pdf.

190 In ascending order: Graneros Shale, Greenhorn Limestone, and the Carlile Shale (US DOE SDEIS, 2007, Figure 

3.3-2). http://pubs.er.usgs.gov/publication/pp1253. For additional information, see Cobban and Merewether (1983).
III. CCR Rejected Damage Cases December 2014

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The glacial till hosts the Veblen aquifer, which occurs in eastern Grant County, the northern and eastern 

portions of Roberts County, and Marshall County.191 The Veblen aquifer, under artesian conditions in 

most areas, shows a significant spatial variability concerning its thickness and hydraulic properties. In 

some areas close to the BSP, where the aquifer is at or near land surface, it is under water-table 

conditions. 192, 193 Recent exploratory drilling has encountered till variants with distinct hydraulic 

properties underneath a thick-clay till with lenses of gravel, sand and silt, which serves to confine the 

aquifer.194

The regional discharge is toward the Minnesota River/Big Stone Lake located east of the BSP and the 

Whetstone River to the south. However, the potentiometric map of the shallow Veblen aquifer 

demonstrates that the ESP’s extensive pond areas exert a large influence on local flow directions:195 the 

Cooling Pond is associated with 25 feet of shallow aquifer groundwater mounding, the Evaporation Pond 

– with 10 feet of mounding, and 20 feet of groundwater mounding occurs in the shallow aquifer south and 

southeast of the Holding Pond. EIP (2010a) claims that the localized mounding invokes substantial 

leakage through the bottom of each pond. According to the Utility, 196 groundwater moves relatively 

slowly in the clay till and the overall potential for horizontal migration is relatively low. Groundwater 

levels show very little correlation with average monthly rainfall indicating that most precipitation results 

in runoff rather than infiltration. Very slow downward vertical migration through the clay till is possible 

over millennia. However, based on the tritium analysis of the HX-series wells, vertical migration rates are 

on the order of decades per foot. Monitoring of groundwater in these deeper zones was discontinued 

because release detection is ineffective in zones where there is virtually no groundwater movement.

Considering the controversy on the extent to which the BSP’s landfill and brine ponds are leaking into the 

aquifer, it would be only prudent to assess the ambient groundwater quality of the Veblen aquifer based 

on the regional study of Hansen (1990). The Veblen aquifer is highly mineralized and possesses average 

sulfate concentrations of 590 mg/L (over the South Dakota water quality standard for sulfate of 500 ppm); 

TDS concentration averages 1,300 mg/L, and Hardness averages 860 mg/L.197

Impact and Damage Claims: EIP (2010a) indicates that a review of recent (2007-09) onsite 

monitoring records found groundwater contamination in 21 of 25 monitoring wells which screen the 

shallow and intermediate sub-aquifers. EIP (2010a) indicates that arsenic and lead were both found in 

multiple wells above the primary EPA Maximum Contaminant Level (MCL), most commonly in wells 

near the brine ponds. EIP (2010a) also notes boron above the EPA Lifetime Health Advisory in eight 

wells, and sulfate, chloride, and total dissolved solids (TDS) above the secondary EPA MCLs (SMCLs) 

 

191 Hansen (1990, Figure 16), and Gilbertson (1996).

192 According to Hansen (1990), and as validated by recent hydrologic studies associated with the now abolished 

BSP II Project (U.S. DOE EIS, 2009), the aquifer’s surface exposure takes place in T. 120 N., R. 47 W. and the 

southern part of T. 121 N., R. 46 and 47 W, near the North and South Forks of the Whetstone River.

193 According to Hansen (ibid, Table 3), the Veblen aquifer has the following physical characteristics: average 

thickness: 28 feet; average depth below land: 52 feet (range: 1-210 feet); average groundwater level below land 

surface: 29 feet (range: 1-81 feet); and range of reported well discharge: 10-50 gallons/minute. According to U.S. 

DOE EIS, (2009), groundwater monitoring conducted at the BSP site since 1971 indicates that groundwater occurs 

at the BSP’s area generally between 40 to 60 feet BGS.

194 U.S. DOE SDEIS (2007, Figure 3.3-3) and U.S. DOE EIS (2009, Section 3.2.2.1). Two recently drilled wells 

encountered fine and medium sands associated with a ground moraine, with hydraulic conductivity of 21 feet/day, 

and gravely sand associated with a terminal moraine, with hydraulic conductivity of 157 feet/day. 

195 Barr (2010): Figure 2 portrays an October 2009 potentiometric photo-map.

196 Ibid, narrative and Figures 2 and 3.

197 Based on nine well data, additional constituents include sodium (65 mg/L on average), iron (2.6 mg/L), 

manganese (0.42 mg/L), bicarbonate (420 mg/L), and chloride (22 mg/L). For the full range of compositions, see 

Hansen (1990), Table 6.
III. CCR Rejected Damage Cases December 2014

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in a number of wells. Strontium was also found in two wells above the EPA Lifetime Health Advisory.198, 

199 EIP (2010a) notes that SD DENR officials insist contamination comes from water softener in the brine 

wastes. EIP (2010a) counters that sulfate, boron, and strontium concentrations all generally correspond 

with the lead and arsenic exceedances. Under the SD DENR permit, boron, sulfate and strontium are 

designated as ash monitoring parameters, indicating CCR is a significant source of the pollution.200, 201

 

198 EarthJustice comment to the proposed CCR Rule’s docket (EPA-HQ-RCRA-2009-0640-6314) address the same 2007-2009 

groundwater monitoring records cited by EIP (2010a). BSP’s groundwater monitoring program consists of 25 wells, 17 of which 

are screened at shallow depths and 8 of which are screened at intermediate depths. Many wells are nested together to provide an 

indication of vertical contaminant transport. EIP (2010a) claims that exceedances have been measured in down gradient 

groundwater for arsenic at more than 13 times the federal MCL at 0.1322 mg/L, boron up to 34 times the federal Lifetime Health 

Advisory Level at 204 mg/L, lead up to 7 times the federal Action Level at 0.1086 mg/L, strontium up to 1.5 times the federal

Lifetime Health Advisory at 6.03 mg/L, chloride up to 13 times the federal Secondary MCL (SMCL) at 3,330 mg/L, and sulfate 

up to 112 times the state standard and 224 times the federal SMCL at 56,000 mg/L.

199 In its comment to the proposed CCR Rule’s docket 

(http://www.uswag.org/pdf/2010/CCR%20Comments/SDDENR112010.pdf), SD DENR challenges EIP’s (2010a) assertion that 

arsenic has been measured in a down-gradient groundwater monitoring well at x13 the federal MCL (0.1322 mg/L total metal) on 

the ground that on that same date, the same well was also measured for dissolved arsenic at 0.0066 mg/L. SD DENR claims that 

the federal and South Dakota drinking water standard (0.001 mg/L) cannot be compared to a treated drinking water standard: 

namely, South Dakota’s groundwater quality standard for dissolved arsenic was not exceeded for water drawn from the same 

well sampled on the same date. EIP’s (2010a) claim about the same well having exceeded the federal action level for lead 

sevenfold is refuted on a similar ground. 

200 An independent comparison between the parameter composition of the various water processing ponds and the corresponding 

monitoring well water is challenging, among others, because the list of parameters tested for in the pond waters does not include 

any metals, and the pond parameters are analyzed for total contents only (rather than, starting in 2009, for dissolved contents 

reported for the monitoring wells). Considering the brine ponds, there are no analytical data provided for either the water 

compositions of the two existing brine ponds or for that of their predecessor brine pond. EIP (2010a) claims that the highest 

arsenic concentrations were reported in the brine pond wells, and the wells with the highest concentrations of arsenic (S-2, BC-2, 

BC-3, and BC-4) generally correspond to those with the highest concentrations of boron, lead, sulfate, and chloride. This is the 

basis for the Utility’s argument (Barr, 2010) that the residual brine of the predecessor leaking brine pond is the source of the high 

levels of both the metals (boron, manganese, and strontium) and the major ions (chloride, hardness, potassium, sodium, and 

sulfate).

To test the hypothesis that evaporation alone can result in significant exceedances of the area’s natural lake waters, we 

used Carter and Thompson’s (1999) concentration level of ‘conservative’ parameters (i.e., constituents that would remain in 

solution until very high concentration levels are caused due to evaporation: sodium, potassium, chloride, and sulfate) measured in 

Lake Traverse as a proxy for the composition of Big Stone Lake’s water - BSP’s cooling water source. The compositions of 

interest are sodium: 46 mg/L, potassium: 12 mg/L, sulfate: 370 mg/L, chloride: 16 mg/L, arsenic: 8 μg/L, and boron: 180 μg/L. 

(Composition data for Big Stone Lake are rather scarce and incomplete, and do not include data for arsenic or boron: 

http://watersgeo.epa.gov/mwm/?layer=LEGACY_WBD&feature=07020001&extraLayers=null).

By evaporating the water of Lake Traverse to the maximum level of sodium concentration recorded in 2009 in BSP’s Holding 

Pond: 526 mg/L (11.4 times the baseline level), it is possible to elevate the concentration of arsenic to 91 μg/L (9.1 times the 

MCL) and that of boron - to 2,052 μg/L (342 times the Lifetime Health Advisory Level). The levels of boron and arsenic would 

be significantly higher in the Brine Ponds’ due to the still higher levels of major ion concentrations in these ponds. Note that the 

average concentration levels of arsenic and boron recorded in Traverse Lake are generally similar to the corresponding values

recorded in 17 glacial-till lakes located in northeastern Roberts County and in the adjacent Day and Marshall Counties: 6 μg/L 

(range: 1-15 μg/L) for arsenic and 270 μg/L (range: 20-790 μg/L) for boron (Carter and Thompson, 1999. For the reasons of the 

compositional characteristics of the North Dakota’s till lakes, see Schwalb and Dean, 1998). 

As to the H well series: EarthJustice claims that the higher concentrations of boron, sulfate and sodium in the down

gradient wells from the Ash Runoff Pond (H-3I and H-3OX), as compared to those of the up gradient wells (H-4OX and H-4I) 

invoke leakage from the Ash Disposal Area (ADA). However, EarthJustice also emphasizes the significant groundwater 

mounding associated with the process water ponds, which it interprets as indicative of leaking from these large ponds. 

EarthJustice claims and BSP’s 2009 groundwater monitoring report concurs (Barr, 2010, Figure 2) that the groundwater 

mounding deflects local groundwater flow away from the regional southbound and eastbound directions (towards the Whetstone 

River and Big Stone Lake, respectively) towards the intervening and topographically lower Ash Runoff Pond and the ADA. In 

conclusion, one cannot rule out the possibility that the elevated parameter concentrations detected in the down gradient wells H3I and H-3OX actually represent an admixture of some local aquifer groundwater with water leaking from the Evaporation- and 

Cooling-Ponds.

201 According to EarthJustice’s comment to the docket (ibid), the extreme degradation shown in 2007-09 monitoring data in 

shallow groundwater down-gradient of the brine ponds, e.g., where sulfate has been measured as high as 52,300 mg/L and boron 

- as high as 204 mg/L, indicates that releases are still continuing to occur from the brine ponds and did not just occur from a

release in the late 1980s. EIP (2010a) points out that impurities within BSP’s holding ponds and brine water units are continually 
III. CCR Rejected Damage Cases December 2014

52

EIP (2010a) also indicates that for a number of reasons, current monitoring is insufficient and cannot 

define the extent of contamination. For example, the Cooling Pond is located along the northern property 

line with no wells along that side. The Evaporation Pond is located along the northern and eastern 

property lines, with no wells along those property lines. Although there may be off-site contamination, 

groundwater is not being monitored along much of the perimeter of the BSP’s site.202

SD DENR and the Utility claim that the elevated sulfate concentrations in some of the monitoring wells 

are representative of the highly mineralized and variable compositions of the Veblen aquifer. However, an 

independent review suggests that the only water quality data which seem to correspond to the range of 

groundwater concentrations in the Veblen aquifer (Hansen, 1990) are those of wells H-1I and H-1OX, 

which are located about 500 feet south of the ADA’s southernmost boundary,203 as well as the 

‘intermediate aquifer’ wells 12, 10, and 11, which are spatially removed from the Holding Pond and its 

moderate groundwater mounding (Wells 12, 10 and 11 are located about 600 feet to the south and 1,000 

to 1,200 feet to the southeast from the Holding Pond, respectively). 

Evaluation against Proven Damage Criteria

Remediation/Resolution: SD DENR required Big Stone to conduct assessment measures due to a 

release from the brine ponds.204 The assessment included installing additional wells around the pond(s) 

 

being concentrated and that (P. 191), “Without a permitted surface discharge, aside from evaporation the only exit for water from 

this closed loop system that concentrates wastes and impurities in the waters is into the shallow groundwater at the site along 

with all leachate from the unlined ash pond and landfill.”

202 In addition, long-term comparisons are undermined by the switch from reporting both dissolved and total metal 

concentrations from the monitoring wells in 2007 and 2008, to reporting only dissolved concentrations of trace 

metals from all the monitoring wells in 2009.

203 According to SD DENR, ibid, these wells are actually located less than 50 feet from the closed and capped

portion of the ash disposal site.

204 According to Barr (2010), the 1988 release moving slowly in the clay soils toward the Whetstone River was analyzed shortly 

following detection based on a containment fate and transport model. The model predicted that concentrations would be below 

applicable standards at the Whetstone River due to natural processes including dispersion.

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 the EPA 

Lifetime Health Advisory for boron and strontium. 

 Onsite groundwater data exceeded EPA SMCLs for 

sulfate, chloride, 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
III. CCR Rejected Damage Cases December 2014

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and a nest of three wells, S-4, S-5, and S-6, south towards the Whetstone River. These wells were 

installed in August 1990. However, after the wells were installed, rather than conduct enhanced 

monitoring to determine the source and extent of contamination, the BSP continued to monitor the 

groundwater under the normal detection-monitoring program. No new off-site (beyond the BSP property 

line) wells have ever been installed, no existing off-site wells have been sampled, and no surface water 

samples have been collected to-date.

USWAG does not consider this site to qualify as a damage case.

205

Evaluation:206 “Not a damage case. Although there are exceedances of primary EPA MCLs, EPA 

Lifetime Health Advisories, and EPA SMCLs in onsite groundwater, the exceedances generally occur 

near the brine ponds and are possibly related to the water softening and treatment process: CCRs cannot 

be directly implicated as a source of the contamination. There are no administrative rulings or court 

decisions associated with the site.”

Rationale for Rejection: Considering that the old Brine Pond, the leakage of which resulted in the 1988 

groundwater exceedances, contains solely non-contact, evaporation-concentrated water, recent (at least 

2007-09) groundwater impact detected in the BC and S monitoring wells cannot be attributed to CCR. 

Due to inadequate spatial distribution of the current monitoring well network around the ash landfill and 

its runoff pond (the H wells) it is impossible to ascertain whether CCRs are directly implicated as the 

source of the recent contamination.

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 #31. ICF, October 2010.

SD DENR (No date): South Dakota Department of Environment and Natural Resources (SD DENR). 

Website link for Waste Management Program – Coal Ash. Accessed Online March 2013.

http://denr.sd.gov/coalash.aspx

Barr (2010): 2009 Annual Water Monitoring Report, South Dakota Department of Environment and

Natural Resources, Solid Waste Permit 06-18A, Big Stone Plant, Big Stone City, South Dakota. Prepared 

by Barr, 4700 West 77th Street, Minneapolis, MN 55435-4803, April 2010. Accessed Online March 

2013.

http://denr.sd.gov/des/wm/coalash/2009bsamr0410.pdf

U.S. DOE EIS (2009): U.S. Department of Energy, Western Area Power Administration, Final 

Environmental Impact Statement Volume I: Big Stone II Power Plant and Transmission Project, 

 

205 USWAG’s comment to the 2011 NODA docket (EPA-HQ-RCRA-2011-0392-0211), November 14, 2011: “This 

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

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

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

on potential impacts to nearby drinking water wells; there are no data from the off‐site wells to indicate off‐site 

impacts.”

206 ICF (2010).
III. CCR Rejected Damage Cases December 2014

54

DOE/EIS-0377, prepared for Western Area Power Administration and U.S. Army Corps of Engineers, 

June 2009. Accessed Online March 2013.

http://energy.gov/sites/prod/files/EIS-0377-FEIS-01-2009.pdf

U.S. DOE SDEIS (2007): U.S. Department of Energy, Western Area Power Administration, Big Stone II 

Power Plant and Transmission Project Supplemental Draft Environmental Impact Statement 0377, 2007. 

Accessed Online March 2013.

http://energy.gov/sites/prod/files/EIS-0377-DEIS-2007.pdf

Hansen (1990): Water Resources of Codington and Grant Counties, South Dakota. U.S. Geological 

Survey Water-Resources Investigations Report 89-4147. Hansen, D. S., in cooperation with the South 

Dakota Geological Survey, East Dakota Water Development District, and Codington and Grant Counties. 

Huron, South Dakota, 1990. Accessed Online March 2013. 

http://pubs.usgs.gov/wri/1989/4147/report.pdf

Cobban and Merewether (1983): the Stratigraphy and Paleontology of Mid-Cretaceous Rocks in 

Minnesota and Contiguous Areas, William A. Cobban and E. A. Merewether, Geological Survey 

Professional Paper 1253, 1983. Accessed Online March 2013.

http://pubs.usgs.gov/pp/1253/report.pdf

Gilbertson (1996): Investigation of Groundwater Resources in Portions of Roberts County, South Dakota, 

Jay P. Gilbertson, State of South Dakota Department of Environment and Natural Resources, Geological 

Survey Open-File Report 81-UR, Science Center, University of South Dakota, Vermillion, South Dakota, 

1996. Accessed Online March 2013.

http://www.sdgs.usd.edu/pubs/pdf/UR-81.pdf

Carter and Thompson (1999): Selected Hydrologic Data through 1996 for the Lake Traverse Reservation/

Roberts County Water-Resources Investigation in South Dakota, Janet M. Carter and Ryan F. Thompson, 

U.S. Geological Survey Open-File Report 98-647, Rapid City, South Dakota: 1999. Accessed Online 

March 2013.

http://pubs.usgs.gov/of/1998/0647/report.pdf

Schwalb and Dean (1998): Stable Isotopes and Sediments from Pickerel Lake, South Dakota, USA: A 

12ky Record of Environmental Changes, Antje Schwalb and Walter E. Dean, U.S. Geological Survey 

Published Research, 1-1-1998. Accessed Online March 2013.

http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1313&context=usgsstaffpub

R13. Reliant Energy Elrama Plant, Washington County, Pennsylvania

Type: Landfill in an Abandoned Coal Mine.

Summary and Description: EPA (2007): EPA identified this site in its original 1988 Report to 

Congress on Wastes from the Combustion of Fossil Fuels by Electric Utility Power Plants. It is described 

in detail in that document. Beginning in 1979, the Elrama Power Plant207 disposed a fixated FGD sludge-

 

207 The Elrama Plant, located about 20 miles south of Pittsburgh, Pennsylvania, on the western bank of the 

Monongahela River in Union Township, northern Washington County, is owned and operated by Reliant Energy

(now GenOn Energy) near Elrama, Pennsylvania. Reliant Energy bought the former Orion Power plant in 2002.

Generation units and in-service dates: 100 MW (1952), 100 MW (1953), 125 MW (1954), and 185 MW (1960). On 

June 1, 2012, Units 1, 2, and 3 were deactivated. Similarly, on October 1, 2012, Unit 4 was deactivated. GenOn 
III. CCR Rejected Damage Cases December 2014

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fly ash mixture (Poz-O-Tec), along with small volumes of bottom ash and sludge from coal pile runoff 

treatment ponds, in a 22-acres stretch of an abandoned strip coal-mine 12 miles east from the plant.208 Part 

of the landfill is underlain by acid-producing spoils from the strip mining of coal.

Impact: In the 1988 Report, EPA found concentrations of cadmium exceeding the MCL by as much as 

20 times in downgradient groundwater; the highest concentration was found in a well closest to the 

landfill. There were no upgradient exceedances of cadmium. Arsenic was repeatedly detected at levels 

three to five times the PDWS in pond liquors, but appeared to be attenuated by soils at the site. Secondary 

drinking water standards (for pH, manganese, sulfate, and iron) were exceeded at the site in both the 

upgradient and downgradient groundwater. EPA concluded that coal combustion wastes have been a 

source of contamination at the site, but also concluded that exceedances for many contaminants were 

probably due to concurrent contamination from acid mine drainage.

Resolution: According to EPRI (2010), there is no information on mitigation and/or remedial actions, 

Current site status and existing monitoring well network. EPRI (2010) claims that there are no receptors 

between the site and the Youghiogheny River. 

Basis for Consideration as a Potential Damage Case: While levels of cadmium exceed the primary 

MCL, the contamination appears to be at least partially attributable to sources other than coal combustion 

wastes. Therefore, this case is a potential damage case.

Rationale for Rejection: Because exceedances for many contaminants were probably due to concurrent 

contamination from AMD, leachate from CCR may have only a small incremental impact on water 

quality.209 EPA concluded that exceedances for many contaminants were probably due to concurrent 

contamination from acid mine drainage.

References

EPA (2007): Coal Combustion Waste Damage Case Assessments, July 2007, Case #30, docket ID EPAHQ-RCRA-2006-0796-0015 (including a reference to (i) a Memorandum from SAIC to Dennis Ruddy 

regarding Rationale and Conclusions Regarding Commenter-Identified Fossil Fuel Combustion Waste 

Damage Cases, April 20, 2000, and (ii) Compendium of nineteen alleged coal combustion wastes damage 

cases, May 3, 2007). 

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

Arthur D. Little, Inc. (1985): Full-scale Field Evaluation of Waste Disposal from Coal-fired Electric 

Generating Plants. Volume 1. Prepared for Environmental Protection Agency, Research Triangle Park, 

North Carolina. Little (Arthur D.), Inc., Cambridge, Massachusetts. June 1985. PB85-228054. 

 

Energy said the Elrama closing is driven by economic conditions, including the high price of coal and lower 

electricity demand: http://gantdaily.com/2012/02/29/genon-looking-to-cut-generating-capacity-shawville-plant-inthe-crosshairs/, 

http://www.post-gazette.com/stories/local/region/off-switch-hit-for-power-plants-220452/#ixzz2M8mzTHej, and 

http://www.cleanair.org/sites/default/files/Elrama%20TV%20(63-00014)%20Comments%201.14.13.pdf

208 Whereas the specific mine site is not identified in the accessible resources, according to the Compendium of 

nineteen alleged coal combustion wastes damage cases (May 3, 2007), the mine drains into the Youghiogheny 

River. According to 

http://www.environmentalintegrity.org/news_reports/documents/LabelleNoticeLetter20130313.pdf, Ash Volume 

Reports submitted annually by Mac Canestrale Contracting indicate that the LaBelle reclaimed strip mine received 

97,370 tons of ash from the Elrama plant in 2010, and 18,344 tons - in 2011.

209 RTC (1988, Page 5-32), citing Arthur D. Little (1985). See also Exhibits 5-10 and 5-11 for concentration levels 

observed at the site’s groundwater monitoring wells.
III. CCR Rejected Damage Cases December 2014

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http://nepis.epa.gov/Exe/ZyNET.exe/500020AK.TXT?ZyActionD=ZyDocument&Client=EPA&Index=1

986+Thru+1990&Docs=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocE

ntry=&QField=&QFieldYear=&QFieldMonth=&QFieldDay=&IntQFieldOp=0&ExtQFieldOp=0&XmlQ

uery=&File=D%3A%5Czyfiles%5CIndex%20Data%5C86thru90%5CTxt%5C00000018%5C500020AK.

txt&User=ANONYMOUS&Password=anonymous&SortMethod=h%7C-

&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display=p

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ximumPages=1&ZyEntry=1&SeekPage=x&ZyPURL

RTC (1988): Report to Congress on Wastes from the Combustion of Coal by Electric Utility Power Plants 

(EPA530-SW-88-002), US EPA, February, 1988. Accessed Online December 2014.

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

EPRI (2010): Evaluation of Coal Combustion Product Damage Cases, Volume 2: Site Information. EPRI 

1020554, Final Report, September 2010. Accessed Online August 2012. 

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%20

Product%20Damage%20Cases

R14. Virginia Electric Power Co. (VEPCO)210 Possum Point, Prince William County, 

Virginia

Type: Surface Impoundments.

Background and Description: The Possum Point site is located 3.5 miles east of Dumfries on Virginia 

State Route 633, just north of Quantico Creek’s discharge point to the Potomac River’s estuary. EPA 

identified this site as a proven damage case in the March 1999 Report to Congress.211 It is described in 

detail in the Report and supporting technical background documents in the rulemaking docket. It is also 

one of the 11 damage cases cited in the 2000 Regulatory Determination.212

The technical background document213 states: “One additional documented damage case is the Virginia 

Electric and Power Company (VEPCO) Possum Point Site, described in the 1993 Regulatory 

Determination. This is an active facility with 40-acre unlined ash ponds with solids dredged to 80-acre 

lined ponds.214 These ponds received coal ash, pyrites, water treatment wastes, boiler cleaning wastes, and 

oil ash. Ground water monitoring found cadmium at concentrations 3.6 times and nickel, at 26.4 times the 

primary MCLs. Monitoring for vanadium was conducted but no results were given. The elevated 

concentrations were attributed to the pyrites and oil ash. These wastes, along with metal cleaning wastes, 

were ordered sequestered to separate lined units.” 

 

210 The Possum Point Plant, located about 30 miles south of Washington, DC, is now under the ownership of 

Dominion Virginia Power. Its two Coal-fueled generating units (Units 1 and 2) were retired in 2003. The facility has 

four generating units with a combined generating capacity of approximately 1,200 MW. Units 3 & 4 are fired using 

natural gas and Unit 5 is an oil‐fired unit. Unit 6 is fired by both natural gas and oil. Natural gas is provided via 

pipeline from Northern Virginia and oil is brought in by boat on the Potomac River. For recent plant information, 

see https://www.dom.com/about/stations/fossil/possum-point-power-station.jsp

211 Technical Background Document to the RTC (1999).

212 EPA (2007, Table 1).

213 http://www.epa.gov/epaoswer/other/fossil/volume_2.pdf 

214 For present pond locations, see O’Brien & Gere (2010), Figures 1-3. According to Dominion Power (2009), there 

are also three old/closed VPDES treatment ponds (Ash Pond A, B and C). According to O’Brien & Gere (2010), 

Figures 1-3, Ponds A and B occupy each an area of about seven acres.
III. CCR Rejected Damage Cases December 2014

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Dominion Virginia Power (DVP) stopped using coal for energy production at this facility in July of 2003.

The facility uses several impoundments for the treatment of bilge water from the barges, storm water 

from the site, and blowdown water from the cooling units. Prior to 2003, ash was slurried to Ash Pond 

E

215 for CCR management. Because Ash Pond E was nearly full, Dominion Power constructed Ash Pond 

D in 1989 to provide additional CCR storage. A minimum amount of CCR was hydraulically transported 

from the unlined Ash Pond E to Ash Pond D.216 Three additional impoundments known as the Oil Waste 

Treatment Basin and the Metals Cleaning Waste Treatment Facility (two separate impoundments) are 

located in the vicinity of Ash Ponds D and E. These facilities are used to precipitate metals and collect 

oils from ballast and water from floor drains, blowdown from Unit 5 and Unit 6, and site stormwater.217

According to EPRI (2010), Groundwater assumed to flow toward the Potomac River or Quantico Creek. 

There are approximately 22 homes along Quantico Creek, potentially down-gradient of the site. These 

homes are reportedly served by municipal water.

Impact: The 1999 Report to Congress states: “Possum Point, Virginia (described in the 1993 

Supplemental Analysis). At this site, oil ash, pyrites, boiler chemical cleaning wastes, coal fly ash, and 

coal bottom ash were comanaged in an unlined pond, with solids dredged to a second pond. Levels of 

cadmium above 0.01 mg/L were recorded prior to 1986 (the primary MCL is 0.005 mg/L).” 

Resolution/Remediation: “After that time (when groundwater impact was realized), remedial actions 

were undertaken to segregate wastes (oil ash and low volume wastes were believed to be the source of 

contamination). Following this action, cadmium concentrations were below 0.01 mg/L.”218

According to Dominion’s comment, in 1987, the facility entered into an Administrative Agreement with 

the Virginia Department of Environmental Quality (VDEQ) to mitigate onsite groundwater MCL 

exceedances for cadmium and nickel, including clean closing and transfer of the infill to an 80-acres lined 

pond. The resultant groundwater data demonstrated an absence of nickel and cadmium below water 

quality standards. VDEQ lists this pond as closed.219

Evaluation against Proven Damage Criteria: Basis for Consideration as a Proven Damage Case: 

“Based on evidence on exceedances of cadmium and nickel, the State pursued an Administrative Action 

by requiring the removal of the waste, thus qualifying it as a proven damage case.”220

Rationale for Rejection: In a recent evaluation of the damage cases, EPA determined that this is Not a 

Damage Case: “Co-Managed CCR wastes (i.e., oil ash with coal ash) without clear implication of CCR 

 

215 Commissioned in 1968; according to O’Brien & Gere (2010), Pond E presently occupies an area of 5.5 acres. 

According to Dominion Power (2009), however, Pond E occupies approximately 32 acres and its capacity is 

approxill1ately 600 acre-feet, of which in January 2009 there were about 451 acre-feet in the Pond. A crude 

measurement of the area of Pond E as displayed in O’Brien & Gere (2010), Figures 1 and 3 supports the area 

reported in O’Brien & Gere’s.

216 According to O’Brian & Gere (2010), the liner of Pond D comprised a clay blanket on upstream slope with a 

permeability of 1 x 10-7cm/sec. Pond D presently occupies an area of 11.4 acres. According to Dominion Power 

(2009), the surface area of Ash Pond D is approximately 120 acres and its capacity is approximately 6400 acre-feet. 

The estimated solids volume currently in Ash Pond 'D' is 1612 acre-feet based on assessments made in January 

2009. A crude measurement of the area of Pond E as displayed in O’Brien & Gere (2010), Figure 1 supports the area 

reported in O’Brien & Gere’s (2010) version.

217 O’Brien & Gere (2010).

218 Technical Background Document to the RTC (1999).

219 Dominion’s comment to the 2011 NODA: EPA-HQ-RCRA-2011-0392-0254

220 EPA (2007).
III. CCR Rejected Damage Cases December 2014

58

wastes in damages.”221 DVP and USWAG cite the same rationale for rejecting this as a CCR damage 

case.222

References

EPA (2007): 2007 Coal Combustion Waste Damage Case Assessments, July 2007, Case #4, docket ID 

EPA-HQ-RCRA-2006-0796-0015 (including a reference to a Memorandum from SAIC to Dennis Ruddy 

regarding Rationale and Conclusions Regarding Commenter-Identified Fossil Fuel Combustion Waste 

Damage Cases, April 20, 2000.) 

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

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

Appendix A, Case #4. ICF, 10/2010.

Technical Background Document to the RTC (1999): Technical Background Document for the Report to 

Congress on Remaining Wastes from Fossil Fuel Combustion: Potential Damage Cases. March 15, 1999. 

Accessed Online February 2013.

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ffc2_397.pdf

O’Brien & Gere (2010): Dam Safety Assessment of CCW Impoundments, Possum Point Power Station, 

Report, United States Environmental Protection Agency, Washington, DC, September 8, 2010. Accessed 

Online February 2013.

http://www.epa.gov/wastes/nonhaz/industrial/special/fossil/surveys2/dom-possum-final.pdf

Dominion Power (2009): Response to a request for information pursuant to Section 104(e) of the 

Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), Virginia 

Electric and Power Company, Possum Point Power Station, March 23, 2009. Accessed Online February 

2013.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys/dominion-va.pdf

EPRI (2010): Evaluation of Coal Combustion Product Damage Cases, Volume 2: Site Information. EPRI 

1020554, Final Report, September 2010. Accessed Online August 2012. 

http://www.epri.com/search/Pages/results.aspx?sq=1&k=Evaluation%20of%20Coal%20Combustion%20

Product%20Damage%20Cases

R15. Mitchell Generating Station, American Electric Power,223 Moundsville, Marshall 

County, West Virginia

Type: Two Surface Impoundments (only the fly ash pond is implicated; the role of the other – bottom ash 

– is unknown), and a (non-implicated) Landfill.

 

221 ICF (2010), Appendix A, P. 4.

222 (i) DVP, in their comment to the 2011 NODA, EPA-HQ-RCRA-2011-0392-0254: “The EPA subsequently 

identified the likely source of this contamination to be oil ash and other low volume wastes and not coal fly or 

bottom ash. As the Possum Point findings are a result of oil ash contamination rather than coal ash, this case is not 

relevant to the scope of the NODA.”(ii) USWAG, in their comment to the 2007 NODA, EPA-HQ-RCRA-2006-

0796-0432, Appendix C.

223 d/b/a Ohio Power Company.
III. CCR Rejected Damage Cases December 2014

59

Background and Description: Mitchell Generating Station manages CCRs in two ponds and a 

landfill:224 the fly ash pond is unlined, and there is no information as to whether the bottom ash pond and 

the landfill have a liner. The Plant’s impoundments have been accepting fly ash and bottom ash slurries 

from two power plants (in 2008, about 40 percent of the total waste came from AEP Mitchell and AEP 

Kammer) and the reminder, ‘unspecified coal mining wastes,’ from the Consol McElroy Mine. 225, 226

The Conner Run fly ash impoundment has been receiving fly ash from the AEP since 1971. This 

impoundment discharges effluent to Conner Run, a tributary of Fish Creek that discharges to the Ohio 

River.227 Conner Run has a site-specific variance from the statewide numeric criteria for selenium and 

iron.228 In addition to ash pond effluent, seepage through ash pond retention dikes also entered Fish 

Creek and the Ohio River. 229, 230

Impact: According to EIP (2010), the Mitchell Plant holds CWA NPDES permit # WV0005304. Outlet 

004 discharges effluent from the impoundment to Conner Run. The outfall has a 0.062 mg/L max daily 

limit for selenium based on the site specific variance. The Mitchell Plant exceeded the selenium limit at 

Outlet 004 in August, 2005, in August-September, 2006 and in 2007, every month from May through 

December, with values between 0.063 to 0.254 mg/L and an average of 0.118 mg/L. 231 

Average selenium concentrations in 14 water samples taken downstream of the discharge in Conner Run 

from November 2005 through April 2007 were 0.0478 mg/L (WVDEP, 2009b). This is more than twice 

as high as the state‘s water quality standard for protection of aquatic life from acutely toxic selenium 

concentrations (0.020 mg/L) and nearly 10 times higher than the state‘s standard for protection of aquatic 

life from concentrations of selenium that engender chronic toxic effects (0.005 mg/L, the same as EPA‘s 

CCC).

 

224 EPA (2009). The Conner Run fly ash impoundment was commissioned in 1971; it has a capacity of 13,500 acrefeet, covers 71 acres, and holds 48 million cubic yards of fly ash. The bottom ash pond was commissioned in 1975, 

has a capacity of 262 acre-feet, and covers 17.5 acres. According to (WVDEP, 2009), the capacity of this pond is 

464 acre-feet. According to WVDEP (2009), the bottom ash pond is roughly parallel to the Ohio River. Heavier 

sludge material is pumped into the upper reservoir of the dam and water flows from the upper reservoir into the 

lower section after settling. The lower section has three small dikes across it that are approximately perpendicular to 

the river that appear to have been installed to increase retention- time in the reservoir. The bottom ash that remains 

in the upper section of the impoundment is removed by a bulldozer and end loader. The water leaves the lower 

portion of the reservoir through an overflow structure and is carried to a third settling pond (‘the clear water pond’) 

before being released into an outfall structure to the Ohio River.

225 WVDEP (2009a). 

226 The Consol McElroy Mine is an underground coal mine and refuse impoundment owned by McElroy Mining, 

that supplies coal to the Mitchell plant.

227 According to EIP (2010), the start date is ‘prior to 1990’.

228 Except that site-specific numeric criteria shall apply to the stretch of Conners Run from its mouth to the 

discharge from Conner Run impoundment, which shall not have the Water Use Category A and may contain 

selenium not to exceed 62 μg/L; and iron not to exceed 3.5 mg/L as a monthly average and 7 mg/L as a daily 

maximum. West Virginia’s statewide selenium numeric criteria for the protection of aquatic life are 5μg/L chronic 

and 20μg/L acute; and State regulations require that site specific numeric criteria be fully protective of designated 

and existing uses.

229 Ibid, and references therein.

230 According to Lemly (2010), whereas the power plant began discharging ash effluent in 1971, no biological 

monitoring was conducted until 2005-2007. No biological effects studies have been done. Discharge of ash pond 

effluent continued unabated in 2010.

231 This specific daily limit for selenium discharge is corroborated by a WVDEP regulator responding to the 2007 

NODA: ‘The permit reissued in 2005 contains a max daily limit of 0.062 mg/L for selenium. It would appear that 

they (AEP Mitchell) have been violating this effluent limit.” Alleged DCs NODA Comments Overview, an EPA 

Draft Document, October 7, 2008, case #11, with Industry’s rebuttal and State’s feedback.
III. CCR Rejected Damage Cases December 2014

60

Despite the waiver’s requirement, EIP (2010) claims there is substantial evidence that aquatic life uses of 

Conner Run are being seriously degraded due to selenium discharges associated with the Mitchell Plant, 

with two, post-2005 instances of an average fish tissue concentration of selenium of 24.4ppm and 

31.5ppm.232, 233

According to WVDEP,234 statistical analyses have been conducted on groundwater monitoring wells 

MWH1, MWU3, MWL3. Statistical Significant Increases (SSI) were found on MWH1 for temperature, 

SO4, zinc, and sodium. No other SSIs were found. Exceedances have been reported for arsenic at MWH1, 

MWU3, and MWL3, and an exceedance for antimony was reported at MWL3. EIP (2010) claims that 

groundwater monitoring showed moderate exceedences of the arsenic groundwater criterion downgradient from the impoundment in several months in 2005 and 2006.

In summary, Incidences of surface water discharges above the site variance concentrations allowed in the 

permit have occurred since at least 2005. Violations of numeric water quality criteria in Conner Run have 

been documented continuously from late 2005 through the spring of 2007. Fish tissue test results indicate 

exceedances of safe levels of selenium in fish occurring at least in 2006. Groundwater data indicate 

exceedances dating from at least 2005.235

Recently, AEP acknowledged (i) high selenium levels in fish while citing extenuating circumstances;236

(ii) occasional selenium effluent limit exceedances in Outfall 004 in 2005-2007; and (iii) exceedances of 

arsenic in groundwater down-gradient from the Conner Run impoundment on four occasions in 2005, and 

on two – in 2006. 237

Remediation/Resolution: The selenium variance for Conner Run, raising it from the USEPA national 

criterion value of 5μg/L to a permissible level of 62μg/L, was not approved by EPA, nor was it based on a 

site-specific standard development process that included supporting biological studies.238

 

232 These levels exceed EPA’s proposed selenium fish tissue criterion of 7.9ppm for the protection of aquatic life by 

3 and 4 fold, respectively. They also greatly exceed threshold values of 4ppm established by A. Dennis Lemly, a 

fisheries selenium expert at the USDA Forest Service. In addition, fish containing 31.5ppm selenium should trigger 

a West Virginia human fish consumption advisory restricting consumption to just one meal a month.

233 Lemly has estimated the monetary value of the damage as $18,666.

234 WVDEP (2009a).

235 EIP (2010).

236 American Electric Power comment to the 2011 NODA: EPA-HQ-RCRA-2011-0392-0202: “WV DEP has not 

adopted any fish tissue criterion for selenium. The only applicable selenium regulatory limitation at the Mitchell 

Plant fly ash pond impoundment is the existing maximum effluent limitation of 62μg/L. This site-specific criterion 

is based on laboratory toxicity studies conducted by Ohio Power Company. Neither WV DEP nor any other party 

has provided evidence indicating that the aquatic life use of Conner Run is or previously was/ impaired.... there is 

considerable evidence indicating that fish residing in fly ash impoundment receiving streams do not suffer adverse 

population-level impacts despite having relatively high levels of selenium in their tissues (Reash et al. 1988, Reash 

et al. 1999; Lohner et al. 2001, Reash et al. 2006). The most likely explanation of these fish not exhibiting adverse 

effects is long-term adaptation and the presence of other trace metals that are believed to antagonize the potential

toxic effects of selenium.”

237 American Electric Power comment to the 2011 NODA, ibid.

238 Lemly (2010).
III. CCR Rejected Damage Cases December 2014

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The WVDEP has classified Conner Run as a fly ash influenced stream.239 Concentrations of selenium in 

muscle tissue of sport fish exceed West Virginia’s consumption restriction advisory levels (10 ppm dry 

weight, or 2.5 ppm wet weight). However, no advisory has been issued.240

Rationale for Rejection: A recent reevaluation of CCR damage cases241 determined that this is Not a 

Damage Case:”The site is reported to co-manage CCR and unspecified ‘coal mining wastes’; therefore 

the claim does not specifically implicate CCRs as a cause of damage to human health or the 

environment.” The observation of a large, co-managed fraction of the waste originating in a nearby mine 

is noted by West Virginia’s regulator242 and adopted by USWAG as one of the arguments for rejecting 

this site as a damage case.243

References

EIP (2010): Out of Control: Mounting Damages from Coal Ash Waste Sites; Environmental Integrity 

Project, EarthJustice; February 24, 2010, Case #31.

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

Alleged DCs NODA Comments Overview, an EPA Draft Document, October 7, 2008, case #11, with 

Industry’s rebuttal and State’s feedback.

U.S. EPA (2009): Coal Combustion Waste Surveys, American Electric Power, Mitchell generating 

Station. Accessed Online February 2013.

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys/survey-mitchell.pdf

WVDEP (2009a): Fly Ash Dam/Landfill Condition Evaluation, West Virginia Department of 

Environmental Protection, Division of Water and Waste Management, Environmental Enforcement, 

November 2009. Accessed Online February 2013.

http://www.dep.wv.gov/WWE/ee/ds/Documents/Status_WV_Fly_Ash_Dams_Landfills_Nov609.pdf

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

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

6313, Appendix I, December 15, 2010. Accessed Online February 2013. 

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

WVDEP (2009b): Selenium bioaccumulation among selected stream and lake fishes in West Virginia. 

West Virginia Department of Environmental Protection, 2009. WVDEP, Charleston, WV. Accessed 

Online February 2013. 

http://www.dep.wv.gov/WWE/watershed/wqmonitoring/Documents/Selenium/Se_Fish_Tissue_Summary

_Paper_final_Feb09.pdf

 

239 WVDEP (2009b): “Average water column concentrations of selenium in streams ranged from <1.0 ppb (μg/L) at 

the reference site, Ash Fork (Fig. 1), to 49.7 ppb at Conner Run, which is influenced by upstream fly ash 

deposition.” 

240 Lemly (2010) and references therein: Average fish tissue selenium concentration in Conner Run is 25.99μg/L, 

predominantly as selenite (Se+4, IV) form, the valance state selenium which is reported to be more bioaccumulative.

241 ICF (2010, Appendix B, #31, p. 62).

242 WVDEP (2009a), citing from Mitchell’s 2008 Annual report.

243 USWAG’s comment to the 2011 NODA: EPA-HQ-RCRA-2011-0392-0211.