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Congressional 'Think Tank' Exposes Flaws of Coal Ash Bill

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18 December 2012, 9:39 AM
S.3512 fails to ensure protection of public health, safety
CRS found that S.3512's and H.R.2273's weaknesses are “unprecedented” in environmental law.

The Congressional Research Service, dubbed the U.S. Congress’ 'think tank', recently released an authoritative analysis of S.3512 and—to the dismay of the bill’s stalwart sponsors—it’s a bust. CRS, a department of the Library of Congress and nonpartisan research tool for the House and Senate, recently weighed in definitively on the Senate and House coal ash bills, S.3512 and H.R. 2273, and concluded that the bills’ weaknesses are “unprecedented” in environmental law.

CRS found that the bills lack a clear purpose and would not ensure state standards “necessary to protect human health and the environment.” These bills—one passed by the House in October 2011 and the other now pending in the Senate—would prevent the EPA from ever setting federally enforceable safeguards for the disposal of toxic coal ash.

Just days before the 4th anniversary of the devastating billion-gallon coal ash spill in Kingston, TN, the report concluded that both bills:

  • Have a “level of uncertainty [that] defeats the purpose of a permit program and would not be consistent with other programs under RCRA.”
  • Provide “no federal backstop authority to implement federal standards comparable to its authorities established under other environmental law, including RCRA.”
  • Create a program without “detailed regulatory standards, [which is] unprecedented in federal environmental law.”
  • Lack a clear “standard of protection” to guarantee that state programs actually protect human health and the environment, which is “unique among all federal environmental law.”
  • Fail to address coal-ash specific risks to human health and the environment.
  • Specify “no deadline … for states to issue permits or to compel owner/operators of CCR structures to operate in compliance with permit conditions.”

The pending Senate bill would block an EPA rulemaking created to prevent spills and water contamination at hundreds of coal ash sites across the country. Introduced earlier this year, S.3512 could be attached to unrelated must-pass legislation at any time before the end of the lame duck session. Yet the push to pass this unprecedented and anti-public health bill on the fourth anniversary of the largest toxic waste spill in U.S. history is nothing short of unconscionable.

In fact, yesterday, Ranking Member Henry Waxman took a similar position in a letter to Energy and Commerce Committee Chairman Fred Upton (R-MI) and Environment and the Economy Subcommittee Chairman John Shimkus (R-IL), asking them to abandon the lame duck coal ash legislation. The letter cites the CRS’s conclusion that the bill would not establish standards as stringent as those applicable to household trash or create “national, enforceable standards” in all states. According to the Rep. Waxman, “the distance between what it was hoped H.R. 2273 would achieve and what it is now clear it would achieve” is a gulf that cannot be bridged by a lame duck bill.

S.3512’s three primary sponsors need only look homeward for compelling reasons to scuttle the dangerous legislation. In North Dakota, original sponsors Hoeven (R- ND) and Conrad (D-ND) should be concerned about three significant-hazard toxic coal ash dams that were rated in “poor” condition by EPA in 2011, prompting an EPA letter to utility owners asking that the dams receive the “highest priority” in light of the threat to “human health and the environment.” A third sponsor, Sen. Baucus (D-MT) needs to consider the continuing harm wrought by the Colstrip Power Plant’s leaking high-hazard coal ash impoundments, which have already sickened nearby residents and threaten to poison ranchers miles away.

In the aftermath of superstorm Sandy, all senators must look homeward and recognize that with more than 200 coal ash-contaminated sites in 37 states, and over 1000 dangerous, aging impoundments in 41 states, the protection of health and safety from a devastating disaster must be their holiday promise. And if any southern senators are in doubt about where to find dangerous dams, an excellent new website launched by Southern Alliance for Clean Energy, Appalachian Voices, Southern Environmental Law Center, and NC Conservation Network identifies toxic coal ash dumps in nine southern states.

On June 29, 2011, Jacksonville Electric Authority (JEA) submitted a letter to the Georgia Environmental Protection Department (EPD) requesting a one-time variance from the state’s Solid Waste Management Act requirements in order to conduct a test project that would “demonstrate the safety and effectiveness of the use of EZBase (a coal ash product) as a roadway construction material in Georgia.”

JEA’s goal is to demonstrate to EPD that EZBase is a “recovered material” under Georgia Regulation §391-34-.04(7) and should be excluded from regulation as a solid waste under the Georgia Solid Waste Management Act at OCGA § 12-5-20 et seq. (Translation: They have mountains of toxic coal ash and hope to find a way to get rid of it).

On September 12, 2011, JEA submitted a revised Sampling and Analysis Plan. Sampling under this plan includes a baseline analysis of the soil and water at the project location and quarterly sampling for at least one year after EZBase is applied – including testing for the following “target analytes”: aluminum, antimony, arsenic, barium, boron, cadmium, chromium, copper, iron, manganese, mercury, molybdenum, nickel, selenium, vanadium, sodium, sulfate, chloride, fluoride, and pH.

The GaEPD granted the variance on May 31, 2012. For this single project, the variance excludes EZBase from the Georgia legal definition of an industrial solid waste. The EPD granted the variance with several conditions, including a requirement that quarterly soil and water monitoring be conducted throughout the pilot project.

With the variance granted, JEA applied EZBase to approximately five miles of road on Rayonier Forest Resources, L.P.’s property in Charlton County, Georgia during the months of Sept.-Oct. 2012. The first of the four quarterly samplings under JEA’s Sampling and Analysis Plan should occur sometime in Jan. or Feb. 2013. (It should be noted that the test wells and sample tests are being funded by the JEA itself).

Meanwhile, in the course of digging through the many mind-numbing layers of regulation and documentation, I discovered that EZBase has been applied at a least four locations in St. Marys, Georgia: Osprey Cove Golf Course, Cumberland Harbour residential development, the Cumberland Harbour fire department parking lot and The Reserve at Park Place. (It was subsequently removed from the golf course cart paths as a condition of the sale of the property. A resident informs me that the paths were crumbling and people were complaining of headaches and respiratory issues).

Apparently the JEA provided SGC Inc. (involved in the development of most of the properties listed) with EZBase at no cost. The product was also delivered, free of charge, to Osprey Cove. Kingsland, our neighboring city, has also used EZBase (without satisfactory results) and it is expected that further inquiries will reveal that many more communities are likewise affected.

The unsuspecting residents of these areas have now been alerted as to the presence of EZBase and they face the potential ramifications: plummeting property values, re-sale impacts and health concerns. No variances were granted in the above cases.

EZBase contains a legion of toxins, including arsenic, lead, mercury, chromium, vanadium, cobalt, boron and at least 12 other heavy metals. In high concentrations, these metals may cause birth defects, lung disease, nervous system disorders and a battalion of other serious health problems. Indeed, the material is so hazardous that it has to be contained in specially-lined holding areas of landfills and disposal is expensive. (JEA now charges $50 per truckload delivery (about 20-25 tons). The utility had previously paid about $625 to dispose of that amount).

EZBase (industrial solid waste) is not allowed in residential areas, near schools, in proximity to wetlands, water sources or wells. The federal Environmental Protection Agency supports “beneficial reuse of otherwise hazardous waste” but admitted late last year that there hasn't been enough testing done to determine the safety of coal ash byproducts. For the past two years the agency has been considering whether or not to classify coal ash as a hazardous waste.

So to sum this up: the JEA applied for a one-time variance to test (on the Rayonier property near the St. Marys River in southern Georgia) the safety of a highly questionable and unproven coal ash product and yet the utility has apparently been marketing to – and supplying developers and property managers with - the material free of charge. Without the knowledge of, or permission from, the GaEPD.

This issue impacts our economy, our property values, our health and our environment. As is usually the case, there are more questions than answers at this time. Certainly there is one man who fervently wishes that he’d never heard of EZBase: Steve Johnson. Over two years ago, he consented to the no-charge delivery of 16 tons of coal ash material (marketed as EZBase) and applied it to the roads on his 30-acre property in Middleburg, Florida. Now his land is virtually worthless and he fears for the health of his family. 2010 soil samples indicated that the arsenic levels on Steve’s property were 4 times the acceptable state level while the vanadium content exceeded 75 times the state standards for safety.

How many more people and areas will be impacted by the application of a material that has yet to be proven safe? How many are, unknowingly, affected now? From a report issued by the Florida Department of Environmental protection (dated April 30, 2008):

"JEA began marketing this material in 2006 and over the past two years has sold approximately 700,000 tons of EZBase, or 30,000 tons per month. Approximately 300,000 tons of the material has been sold for use in Florida. The balance was sold for use out of the state. Some of the uses in Florida and southern Georgia have been for uncovered roads in rural applications. The plan was that these rural roads would be covered with asphalt at some future date. Some of these uncovered, rural road applications have resulted in dust complaints to the Department (due to the cementing properties of EZBase, it was not expected to cause a dust problem)."

Between 2006 and 2008, 400,000 tons of EZBase found its way to Georgia. Questions: How many thousands of tons since then? Why did they even bother with the variance for the Rayonier test site? "The plan was that these rural roads would be covered with asphalt at some future date.”: was there any follow-up to ensure that the roads were covered? Given all of the documentation regarding high levels of vanadium and arsenic, how can the JEA possibly justify or defend the shipping EZBase to residential developers – in some cases at no charge?

This appears to be a case of acting first and seeking permission later. I would strongly suggest that any Florida or Georgia citizen living near roads that have been paved since 2006 contact their city’s planning department. Meanwhile, I think of the children playing in parks near these roads; the expectant mothers working in their gardens; the elderly couples enjoying their evening stroll…none of them knowing that they may be paying a high price for putting their trust in systems and businesses that sometimes place profit above public health and safety.

Very useful article, thank you very much for your help!

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