Possible violations found at Washington County coal refuse site
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Citizen complaints sometimes do lead to action.
Under citizen pressure, the U.S. Office of Surface Mining has found a series of potential violations at the Champion Processing site in Washington County -- the largest coal-waste disposal site east of the Mississippi River.
The state Department of Environmental Protection has primacy in regulating the 600-acre site in Robinson Township that contains about 38 million tons of coal waste.
But the OSM decided to intercede and visit the site in December, then conduct its own site inspections in August, after ruling that DEP responses to citizens concerned about potential environmental problems were "arbitrary, capricious or an abuse of discretion."
"It isn't unusual for OSM to use the 'arbitrary and capricious' language in a response, as that's what's required in the statute," said OSM spokesman Chris Holmes. "It's our way of letting the state know we have an issue with their response to a 'Ten Day Notice,' and the point of the [notice] is to resolve the issue."
A 10-day notice serves to order the DEP to address potential violations and respond to the OSM within 10 days, with extensions sometimes granted. It is DEP's responsibility to file actual notices of violation.
The scenario that began two years ago involved extended correspondence between attorneys for environmental and citizen groups and the DEP and OSM, leading to many fits and starts.
In a series of exchanges throughout 2010, attorneys from the Environmental Integrity Project and Vermont Law School's Environmental and Natural Resources Law Clinic requested DEP inspections that turned up potential violations. But when the DEP failed to file notices of violation against Champion Processing Inc., then refused to do follow-up inspections, the environmental attorneys appealed to the OSM to force action.
In a Dec. 22 "Ten Day Notice" to the DEP, the OSM said its own site visit found water discharges and seeps that weren't directed to the treatment system, acid mine drainage that was pooling off site, and water in Pond 1A on site that "may be contaminating groundwater and surface water."
But in its Jan. 14 response to OSM, the DEP said it found no such violations -- that seeps and discharges were being collected and treated, and water from Pond 1A was flowing into a treatment system. OSM took no further action.
In the spring, Environmental Integrity Project and law school attorneys again asked the OSM to review inspection results and address another list of potential violations.
In response, OSM officials issued the DEP another notice to investigate fugitive dust and alleged contamination of groundwater and drinking water supplies, with orders to address concerns about Pond 1A on site and Beaver Pond, an off-site pond along Route 22 with an unusually bright blue color.
With those concerns still pending following another exchange of letters, the OSM did a site visit on Aug. 18, then conducted a federal inspection of limited scope on Aug. 30 with Environmental Integrity Project and law school attorneys present. The OSM then sent the DEP yet another 10-day notice Sept. 1 with an order to address potential violations.
That OSM notice said that Pond 1A did not have "acceptable energy dissipators at the base of the manual de-watering device" and that site owners had failed "to maintain an appropriate emergency spillway" while also failing "to maintain the stability of a treatment facility in conformity with good engineering design."
The DEP then conducted its own inspection. Its Sept. 6 response to the OSM said it was working with Champion Processing to resolve the violations by last Friday. The OSM is evaluating test results from the site.
"We have just received the results from the laboratory, and the hydrological review of those results is now under way," Mr. Holmes stated in an email. "The scientific review will determine where we go from here in resolving the [citizens'] complaint."
Raymond Hoehler, attorney for Champion Processing and Robinson Power Co., could not be reached for comment.
EIP and Vermont Law School attorneys have been assisting Residents Against the Power Plant, a citizen group opposed to power-plant construction on the coal-waste site, including one that would burn coal waste. The group also has been critical of waste-site operations.
Correspondence about inspections and violations has led the resident group and attorneys from the EIP and law school to criticize the DEP for being lax in oversight of the dump site. They say OSM findings raise questions whether site owners can be trusted to comply with environmental regulations if they receive permission to build two power plants on the property.
Already, Robinson Power Co. LLC, with the same owners as Champion Processing, has acquired an air-quality permit through DEP to build a 150-megawatt gas-turbine power plant on the waste site.
In 2006, the so-called Beech Hollow Power Plant Project received zoning approval to build a coal-waste power plant, but that permit expired. The company now is seeking approval from Robinson Township supervisors for a modified conditional-use permit to build the gas-turbine power plant. It also has announced plans to seek an air-quality permit to build a sister power plant -- a 150-megawatt facility that would burn coal waste.
"The fact is, all the violations that have been uncovered have raised questions whether the [township] board should allow a conditional-use permit potentially for a two-unit power plant," EIP attorney Lisa Widawsky said. "That gives citizens a lot of pause and concern when ongoing violations remain unresolved for a project that would allow a major increase in pollution."
The coal-refuse site long has posed environmental puzzles for the DEP, which has been seeking a plan for decades to stabilize or reclaim it. In recent years, attention has turned to constructing a power plant to burn the waste so the site can be reclaimed for commercial or industrial use.
But air-quality regulations, tightened in recent years for construction of coal-fired power plants, have made it more difficult to get approval for such plants.
Members of the resident group have said that forcing the Champion site owner to comply with existing laws would better protect the community than construction of a power plant to burn the waste. That would require re-mining the site, burning waste then disposing of fly ash on the site. The group and its attorneys say that would cause more harm to health than leaving the site as is and forcing remediation through existing laws.
Robinson Township supervisors now hold the unenviable position of deciding whether to approve the controversial power-plant projects or allow the site to remain as is, with potential for groundwater contamination.
"Ever since we've been involved, we've been noting violations," said Ken Rumelt, a lawyer with the Vermont Law School environmental clinic. "However, with the OSM's involvement, we have seen a far greater effort to bring the site in compliance. We find that encouraging and hope that trend continues."
The goal, he said, is identifying environmental problems at the Champion Processing site and resolving them.
"We have to address this problem and protect the people," Mr. Rumelt said. "It's that simple."
First Published October 2, 2011 12:00 am