Tuesday, June 12, 2012

My Letter to Earthjustice

I wrote a very angry letter to Earthjustice today.  Normally I support environmental advocacy groups, but every once in a while I come across something that makes me shake my head in despair.  In this case, the issue is the regulation of coal ash from power plants.  Coal ash is currently a topic of much dispute, given the potential hazards it can create (e.g. the Kingston, Tennessee ash lagoon disaster in 2008).  Suffice it to say I know a lot about coal ash.

Earthjustice published this online press release regarding the handling and disposal of coal ash in the Commonwealth of Massachusetts. The press release unfortunately contained some glaring errors, and I wrote the letter below in order to assist Earthjustice in correcting the errors.  I regret using some of the angrier words that I employed, but I was feeling a bit insulted by what they had published, and was angry when I wrote this.

Unfortunately, sometimes you owe your friends the duty of shouting at them when they screw up badly enough.  (Apologies in advance to any friends of mine who read this!)

This experience has been a big disappointment for me, since I want groups like Earthjustice to succeed and flourish.  I've donated time and money to helping a number of them (though lately they seem only to want my money). 

The role of environmental advocacy groups, such as Earthjustice, MassPIRG, the Sierra Club, etc. is to inform the public on environmental hazards and other issues.  It's therefore essential that the advocacy groups provide the correct information-- complete, properly researched and sourced, technically astute, and cognizant of the relevant state and federal regulations and statute.  That's not easy.  It's a sad fact that advocacy groups like these don't have very many technical people on their staffs.  This is why people like EPA whistleblower William Sanjour (a personal hero of mine) are so valuable, because they possess both the personal inclination and the professional expertise to make a solid case for an environmental cause.  Enthusiasm and public outreach are excellent and indispensable things, but they cannot replace expertise in the subject matter. 

Wrong or incomplete information ultimately does more harm than good; when exposed as incorrect after an advocacy organization used it to beat the drum of public opinion, the public responds with cynicism and apathy, the advocates are exposed to ridicule, and the cause itself loses credibility, leading to a situation best described with a quote from an angry Bodie Broadus on The Wire-- "...and now we look like bitches."  We expect hyperbole and glibness with facts from Fox News-- a news organization that blames its excesses on being entertainment, and which once claimed as a legal defense to have no legal obligation to broadcast the truth-- and we damn them for it.  These groups should at least aspire to be better than Fox News.  I haven't read everything Earthjustice has written, and I hope that this document was an isolated incident.

Earthjustice has promised a reply, which I will post when it arrives.

Ego servire huic veritatem.....

June 12, 2012

Ms. [Name Redacted], Legislative Associate
Suite 702
1625 Massachusetts Avenue
Washington, DC 20036

Dear Ms.[Name Redacted]

I recently reviewed Earthjustice’s press release, Massachusetts Coal Ash Disposal and Reuse, and noted several serious errors in it.

As an environmental professional working in Massachusetts and specializing in hazardous and solid waste management (including coal ash, things that go boom, and worse), and as a self-identified tree hugger who helps to run the Green Drinks meet-up in Springfield, MA, this is a disappointing smack in the face from an environmental advocacy organization that I ordinarily respect. 

Accordingly, writing on my own behalf, I offer the following comments as assistance to Earthjustice in correcting the errors.

Your document’s most significant error is an egregious misinterpretation of a statutory exemption in the Massachusetts Public Health Law, Chapter 111 Section 150A, which your document presents as exempting coal ash from state waste management requirements. Your document then incorrectly informs the reader that Massachusetts somehow uniquely does not regulate coal ash (which is not actually possible, given the federal requirements of Subtitle D of the Resource Conservation and Recovery Act of 1976, as amended). 

The relevant passage from your document states, as quoted verbatim:

State Law Deficiencies
·         The Massachusetts Solid Waste Act, Chapter 111, s. 150A, specifically exempts coal ash from solid waste regulations. The use of coal ash as fill or for any commercial or industrial purpose (or when stored for such use) does not need approval from the local board of health and is not regulated by the Department of Environmental Protection.

·         Chapter 111, s. 150A also currently exempts the disposal of coal ash in a monofill (single waste landfill) from solid waste regulations, including the requirement to obtain approval from local boards of health.

None of these statements are correct.  To the contrary, Massachusetts does regulate coal ash, but not necessarily or automatically as a waste material.  The Massachusetts Solid Waste Regulations and Hazardous Waste Regulations, and their authorizing statutes, each place great emphasis on recycling.  Materials that are recycled are not considered to be a waste, since they have value, can be productively used, and are not being discarded.  This paradigm is consistent with federal statute and regulation. 

In particular, the relevant text from Section 150 reads:

Ash produced from the combustion of coal, including but not limited to fly ash and bottom ash, shall not be construed as refuse, rubbish, garbage, or waste material under this section when used as a raw material for concrete block manufacture, aggregate, fill, base for road construction, or other commercial or industrial purpose, or stored for such use. (Emphasis mine) 

This is a targeted exemption included in the statute specifically to encourage the recycling of coal ash into usable products, such as concrete, in preference to land disposal.  It is emphatically not a blanket exemption from regulation since ash not being reused or stored for reuse is a waste and remains subject to solid waste management laws.  The original intent of the exemption was to avoid requiring commercial facilities such as concrete block manufacturers or areas of highway where coal ash was used as a structural fill to seek approval as registered landfills or solid waste facilities (in MA, this is dubbed “Site Assignment”) on top of their existing requirements.  They are still required to handle the materials appropriately and are subject to civil and criminal enforcement actions for failure to do so. The same part of Section 150A later specifically notes,

[The MassDEP] shall have jurisdiction to determine, after notice and hearing, that the establishment or operation of such a [recycling] location has created a nuisance condition by reason of odor, dust, fires, smoke […]

The reuse of coal ash as a base for road construction, landfill cover, or fill material also is not taken for granted, but requires the proponent file a site-specific Beneficial Use Determination with the MassDEP, in which analytical data collected from the actual ash or other material is used to conduct a pre-construction risk assessment for human health or ecological risks, based on the same 1x10E6 (one chance in one million chances) risk factors used for MassDEP’s pollution remediation standards.  All such determinations are subject to MassDEP approval.

Coal ash that fails TCLP analysis or otherwise qualifies as a hazardous waste may not be beneficially reused unless the method of reuse (as proven to MassDEP’s satisfaction) prevents human health or ecological damage.  In the interim, the material must be managed as a hazardous waste rather than as a solid waste. 

Ergo, even recycling operations are subject to regulatory oversight and must conform to established standards for the protection of human health and the environment.

If the ash is not going to be reused, it is a waste and is subject to the standard solid waste (and sometimes hazardous waste) requirements (e.g. disposal only at a DEP- approved facility).  Any inappropriate use or disposal of ash is subject to civil or criminal penalties.

The same part of Section 150A states that:

No final disposal of ash produced by the combustion of coal may be accomplished by burial of such ash in the ground, other than as base for road construction or fill, unless the place where such disposal takes place has been assigned for such disposal by the board of health and plans for such disposal have been approved by the department pursuant to this section.  [In other words, coal ash may only be landfilled at permitted solid waste landfills]

These provisions have been part of Chapter 111 statute in their current form, unchanged, since 1976.  QED, coal ash is not exempt from statutory or regulatory requirements, as your document claims, and hasn’t been for over three decades.  I note that your document is not dated, but two of the footnotes reference documents from 2007, so I presume it was written later than 2007.  This sort of gross error is inexcusable and embarrassing, and damages the credibility of environmental advocacy organizations.
In addition, since your document claims that boards of health are barred from taking action against coal ash facilities, please note that under Chapter 111 statute and under the implementing regulations, solid waste management and enforcement is directed jointly by MassDEP and the municipal boards of health, and since Massachusetts is a home rule state, municipalities retain the authority to regulate coal ash either under Chapter 111 or by means of local bylaws, e.g. as the City of Haverhill has done with a bylaw specifically prohibiting its storage or use within the city.  Boards of Health also possess considerable enforcement authority, and may take enforcement action independent of MassDEP.

In addition, the statement that “The advanced age of these [coal ash] ponds makes it unlikely that they have critical safeguards like liners and leachate collection systems” is questionable to say the least.   State and federal construction standards for lagoons went into effect in the 1980s, which antedates the construction of at least some of the ponds you list.  In any case, the construction and inspection plans for the lagoons are readily available in MassDEP files, and the presence or absence of liners and leachate collection systems could easily be verified with a few telephone calls, without even the need for a Freedom of Information Act request.

I’m not sure where the claim that coal ash is “exempt from monitoring” comes from, but it’s flatly not true.  All landfills in the Commonwealth, including coal ash monofills, are subject to groundwater monitoring requirements while in operation and for varying periods of time after the landfill is closed and capped.  Incidentally, the Mount Tom ash landfill, which you describe as still in operation, actually closed in the late 1990s and has been capped. 

The only other exemption I’m aware of for coal ash is an exemption under the Massachusetts Contingency Plan—the state’s remediation regulations—that exempts coal ash (together with wood ash and unburnt coal) from some but not all requirements of the cleanup regulations, under which it is exempt from release notification requirements only; if the ash poses a hazard, it must still be dealt with.  The rationale for this is that drilling a hole anywhere in a mill town or other urban area in the Commonwealth is almost certain to encounter coal ash or contaminants stemming from coal ash (typically metals or PAHs) because prior to the 1960s, coal bottom ash was widely used as fill material in urban properties.  Even undisturbed land accumulated coal residues from a century and a half of atmospheric deposition of the particulates that we now trap and manage as fly ash.  It is wholly impracticable to regulate such small and ubiquitous amounts of coal ash residues.

As a corollary to the above, Massachusetts has required all landfills opened in the Commonwealth since the early 1980s to be (at minimum) constructed according the RCRA Subtitle D requirements, including a liner, leachate collection system, etc.  Older pre-Subtitle D unlined landfills undergoing final closure and capping must receive leachate collection systems if leachate is a problem at the facility.  Unlined landfills in Massachusetts could not receive solid waste after 1992 (c.f. Chapter 153 of the Acts of 1992), but were required to dispose all further waste in lined landfill cells that meet or exceed Subtitle D requirements. 

On a final note-- the West Springfield power plant was originally built to be dual-fueled with coal and oil, but has not burned coal since at least 1999 (it currently burns fuel oil and natural gas), and the coal-firing equipment has been removed.  It is inaccurate at this point, thirteen years later, still to consider it a coal-fired plant. 

Professionals like myself work very hard to protect the environment.  I do not wish to be rude, but gross misinformation of this sort, written by people who self-evidently have not done due diligence in their research and consequently have no idea what they’re talking about, only makes our job harder by forcing us to re-fight battles in the legislature and in the court of public opinion over non-existent problems.

Accordingly, I politely suggest that Earthjustice remove the document from the Internet and correct it.

If you intend to continue publishing documents to raise public awareness of environmental issues—and I sincerely hope you continue—please make sure your facts are correct, or you will do a great disservice to everyone, including yourselves and those for whom you advocate.

I am at your disposal (no pun intended) if you have any further questions on the matter.


[me], CHMM

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