This site will post communications directed to the Roane Community Advisory Group (CAG) as they are received in order to keep the community affected by the TVA ash dike failure fully informed.

General information regarding the CAG and relevant public documents are posted at the CAG website.

Tuesday, January 19, 2010

Regarding: EPA proposed regulation of coal combustion wastes

January 8, 2010

To: Mr. Cass R. Sunstein, Administrator
Office of Information and Regulatory Affairs
US Office of Management and Budget
Washington, DC

Regarding: EPA proposed regulation of coal combustion wastes

Dear Mr. Sunstein,

My colleagues and I, who have undersigned this letter, have a combined 100+ years of research experience on the environmental fate and toxic impacts of coal combustion wastes (CCW). We have studied everything from minnows to alligators and we have a full understanding of the toxic pollution that has taken place and the ecological risks that exist. Make no mistake about it,
CCW is a deadly poison to fish and wildlife, and a threat to human health when improperly managed. We are writing to point out and correct some major flaws and misrepresentations in the reports that have been put forward by the Electric Power Research Institute (EPRI, see references 1 & 2) regarding environmental damage from CCW, the hazards posed by current disposal practices, and the cost to implement a “C” designation for regulating CCW.

Despite virtually no federal or state requirement for monitoring of CCW disposal sites, numerous damage cases have come to light simply as a result of the general public or public advocacy groups…..they noticed that something wasn’t right with the surrounding environment. Subsequent investigative research by the academic community has been instrumental in identifying and characterizing toxic impacts and ecological risks of CCW. The power industry
has largely been in a reactionary mode, responding to contamination issues after they were pointed out, and typically when mandated by the states. Of course, some pollution events have been so extensive and destructive that the problem is immediately obvious to all, the latest being the massive ash spill at the TVA-Kingston Fossil Plant in December of 2008, which will cost ratepayers billions for cleanup efforts.

Even though there has been no systematic or comprehensive monitoring of CCW disposal, information sufficient for a technical evaluation has emerged for about 89 sites. USEPA reviewed this information during the period 1999-2009 and concluded that 80% (71 of 89) either had proven damage (off-site groundwater, surface water, and/or ecological impacts) or potential damage (contamination above relevant standards in groundwater has been documented on-site, extent of off-site movement not determined yet; see USEPA reference 3 and subsequent). The implications of this finding are immense. Only 89 sites were evaluated, yet 80% are an environmental hazard and include DRY as well as wet disposal. Multiply this percentage by the
number of CCW disposal sites across the country (2000+) and you will get a perspective on the extent of the problem. There are literally hundreds of hazardous coal combustion waste sites out there, very few of which have been monitored or investigated at all. The EPRI reports cited previously make several statements, inferences, and conclusions that misrepresent facts and falsely downplay the ecological impacts and risks associated with CCW disposal. We wish to correct these fallacies.

(1) Fallacy of disposal type.....EPRI implies that ”it’s only a problem with wet disposal”.
In fact, dry disposal can be just as deadly as wet disposal unless composite landfill liners (most often, today’s new facilities are using inadequate “CCB liners” instead of true landfill liners), impermeable caps, and leachate collection AND treatment systems are used. Most states do not require this level of control and thus numerous “dry” sites are producing highly hazardous leachate which is not treated before draining into off-site groundwater and surface water (for example, the Dominion Power golf course “dry” dump in Chesapeake, VA, see reference 4; or “dry” mine fills, see reference 5; or “dry” landfills such as Pines Alternative Superfund Site).
(2) Fallacy of age......EPRI concludes that ”it’s only a problem at old sites where old disposal practices were used”. In fact, new and proposed coal combustion waste disposal complexes pose grave, unacceptable risks to the environment. For example, the US Fish and Wildlife Service recently issued a biological assessment for the proposed Desert Rock Energy Project, NM
(USFWS, see reference 6). It points out that even with the use of DRY waste disposal, off-site migration of selenium would pollute the San Juan River and poison two federally listed endangered fish.....the Colorado pikeminnow and razorback sucker. This pollution will happen because of a failure of the Navajo Nation EPA and US Office of Surface Mining to require adequate containment measures for coal combustion waste....i.e., composite liners, impermeable
caps, leachate collection AND treatment systems. Major pollution issues have developed from post-2000, state-approved “dry” disposal practices; for example, in mine fills (see reference 5). Moreover, many of these “dry” sites are simply open dumps that are approved as “structural fills” and they are completely unregulated and unmonitored.
(3) Fallacy of location......EPRI contends that ”it’s only a problem on utility’s property”.
In fact, there are numerous well documented cases of significant off-site migration of pollution and resultant impacts to fish and wildlife. For example, the Gibson Coal Plant, IN, polluted a wildlife refuge (see reference 7). USFWS is now involved in an on-going cleanup/remediation. Pollution from the Savannah River site contaminated wetlands and deformed amphibians for miles (see reference 8). The Colstrip Plant, MT, and many other facilities have contaminated off-site groundwater in addition to surface water (see reference 9). This will perpetuate hazardous conditions because once groundwater is polluted, it creates a seepage plume that can move toxic materials into surface water and expose fish and wildlife for decades and over considerable
(4) Fallacy of the “permits”…….EPRI asserts that “utility industry pollution from CCW is controlled in permit regulations for modern disposal sites”. In fact, at the large majority of permitted CCW disposal or management sites, relevant criteria for the control or monitoring of constituents of concern in CCW are simply not being specified in the permits. This includes the failure to enforce drinking water standards or state groundwater standards for RCRA
metals as corrective action standards in groundwater, and failure to set effluent limits in surface discharges that would prevent exceedances of surface water quality standards for ash constituents. Not only are there no limits to prevent concentrations of heavy metals and other highly hazardous substances (e.g., selenium) from increasing to harmful levels in waters
receiving drainage from the large majority of CCW placement areas, there is often not even a requirement to monitor for these constituents in the CCW itself.
(5) Fallacy of EPA criteria......EPRI often states that “our industry’s discharges meet EPA guidelines”. In fact, EPA’s aquatic life criterion for selenium, one of the most toxic CCW pollutants, is not protective at all.....and their own research shows that less than half of the currently permissible level of 5 parts-per-billion (ug/L) can be toxic (see reference 10). A CCW/selenium expert workshop held in 1998 recommended that EPA use tissue-based
criteria, and EPA is moving to do that (see references 11-12). So, if EPRI and the coal utility industry say they are meeting EPA’s criterion for selenium, they are simply stating that they are poisoning fish and wildlife “legally”. An excellent example of this is the recent Kingston TN ash spill. Selenium levels in the Emory River are well below 5 ug/L, yet fish contain toxic concentrations in their tissues (see reference 13). Remarkably, and despite the documented
hazard at this site, there is no limit for selenium in the NPDES permits for any discharges from the Kingston Plant, including the ash disposal cell that discharges into the Emory River next to the one that collapsed and filled the river with coal ash.
(6) Fallacy of no effects.......EPRI often asserts ”we have no evidence of biological effects”. EPRI uses this statement as a way to “confirm” there is no problem. This form of word trickery is used to persuade the uninformed that there is no problem by turning the ABSENCE OF DATA into a “finding” when, in fact, EPRI/Industry haven’t even monitored to see if there is a problem.
Having no evidence of adverse effects is totally different than evidence of no effects.
Compare these “findings”......only the latter is scientifically correct.
(A) No monitoring/assessment (no data) = no evidence of effects => no problem
(B) Proper monitoring/assessment (data) = evidence of no effects => no problem
Statement A is called the Null produces a false “no effect” finding.
Don’t be fooled by this tactic….demand to see the DATA that show no effects. You will soon discover that problems DO exist at most sites where detailed biological monitoring and assessment have taken place….even though only a small fraction of CCW disposal sites have been investigated at all.
(7) Fallacy of cost........EPRI alleges that ”the cost of CCW disposal under a “C” hazardous waste regulation would be too expensive”. In fact, the cost of the “unregulation” that exists now is out of control and even more expensive. Case after case shows that cleanup and mitigation costs are millions (e.g., Gibson, Colstrip, etc.) to over a billion dollars (TVA-Kingston) per site. These
cleanup and mitigation efforts can only be partially effective. Also, these costs do not include the perpetual maintenance costs of toxic leachate from landfills that don’t have composite liners and leachate collection and treatment (at least 75% of existing landfills don’t even have composite liners according to EPA, see reference 9). States are not requiring adequate liner/leachate/treatment standards for existing or planned landfills (e.g., Desert Rock). Thus, landfill hazards are an inevitable and increasing cost. Also, remember that OVER 99 PERCENT of CCW disposal sites HAVE NOT been technically evaluated. Based on what science tells us from the tiny fraction that have been studied, the cost of as-yet unrecognized or ignored harm to human health and wildlife can be reasonably anticipated to exceed all the previously mentioned costs combined.
CONCLUSIONS: Fish and wildlife are being poisoned by the toxic leachate from CCW......the more we look, the more cases we find. Consequently, ecological liability and associated costs are on the rise. So-called “improvements” in disposal and management of CCW touted by EPRI and the coal power industry are based on a series of claims that are empirically disprovable fallacies. The future is grim unless fundamental, far reaching changes take place in the way CCW is regulated and controlled. Furthermore, designating “wet” disposal as hazardous while exempting “dry” is not the answer because dry disposal merely moves the pollution problem from one place to another, but does not lessen the threat unless composite liners and leachate collection and
treatment systems are used. Most states DO NOT require this level of pollution abatement. The facts speak for themselves. Some of the most destructive and pressing environmental problems with CCW are not “in the distant past” but are taking place NOW using “state approved” disposal
practices. Threats and impacts are not being addressed by the coal power industry and they will not go away. They will be a recurring, escalating problem unless adequate regulatory controls are put in place. State efforts are inadequate….federal regulatory oversight is necessary. Experience shows that CCW’s will need to carry a hazardous waste “C” designation if they are to
be regulated and disposed in a manner that will afford adequate protection to fish and wildlife, as well as humankind.
In the interest of sound environmental protection, we urge you to carefully consider and reflect on the information in this letter. After 40+ years of “getting it wrong” by the coal power industry and states, the Office of Management and Budget and EPA have a golden opportunity to “get it right” as federal regulations for CCW are finalized. Please let us know if you have questions. We would be glad to meet with you and discuss our information in more detail if that would be helpful.


A. Dennis Lemly, Ph.D. Christopher L. Rowe, Ph.D.
Research Professor of Biology Associate Professor of Environmental
Wake Forest University Chemistry and Toxicology
Winston-Salem, NC 27109 University of Maryland,
Chesapeake Lab
336-758-4532 Solomons, MD 20688 410-326-7227,

Shea R. Tuberty, Ph.D. Charles H. Norris, P.G.
Associate Professor of Biology Geo-Hydro, Inc.
Appalachian State University Denver, CO 80206
Boone, NC 28608 303-322-3171
828-262-6857 cnorris@geo-

Bryce F. Payne Jr., Ph.D.
Associate Professor of Environmental
Engineering and Earth Sciences
Wilkes University
Wilkes-Barre, PA 18766

Cc: Lisa Jackson, EPA Administrator
Mathy Stanislaus, EPA Office of Solid Waste and Emergency
Response Assistant Administrator
Cortney Higgins, Office of Management and Budget
Mabel Echols, Office of Management and Budget

References Cited:

(1) EPRI (Electric Power Research Institute). 2009. Evaluation of coal
combustion product damage cases. Volume 1: Data summary and conclusions.
Report 1020553. EPRI, Palo Alto, CA.
(2) EPRI (Electric Power Research Institute). 2009. Evaluation of coal
combustion product damage cases. Volume 2: Site information. Report
1020554. EPRI, Palo Alto, CA.
(3) USEPA (United States Environmental Protection Agency). 2007. Coal
combustion waste damage case assessments. USEPA, Office of Solid Waste,
Washington, DC.
(6) USFWS (United States Fish and Wildlife Service). 2009. Desert Rock
Energy Project - Biological Opinion. Section C. Effects of selenium on the
federally endangered Colorado pikeminnow and razorback sucker. U.S. Fish and
Wildlife Service, New Mexico Ecological Services Field Office, Albuquerque, NM.

Technical Qualifications Statement
Dr. A. Dennis Lemly

I have spent over 30 years investigating the effects of aquatic
pollution from coal combustion wastes (CCW). I have extensive experience
conducting field and laboratory research on selenium, which is one of the most
toxic trace elements in CCW. My studies have focused on aquatic cycling,
bioaccumulation, and effects on fish. These studies include intensive
investigations of the two most substantial cases of selenium pollution that
have taken place in the USA: (1) Belews Lake, North Carolina, where 19
species of fish were eliminated due to selenium in CCW, and (2) Kesterson
Marsh, California, where thousands of fish and aquatic birds were poisoned.
My career began in the late 1970's with studies of the landmark pollution
event at Belews Lake, which established the fundamental principles of
selenium bioaccumulation and reproductive toxicity in fish resulting from CCW.
In the 1980's, I was a research project manager for the U.S. Fish and Wildlife
Service, directing studies that determined impacts of selenium from
agricultural irrigation drainage on fish and aquatic birds at Kesterson and in 14
other western states. In the 1990's, the emphasis of my research shifted to
the development of methods and guidelines for hazard assessment and water
quality criteria for selenium, which led to the publication of a reference book
(see item 42 below). This handbook contains the first comprehensive
assessment tools for evaluating selenium pollution from CCW on an ecosystem
scale. I have consulted on selenium contamination issues ranging from CCW
landfill leachate in Hong Kong to mountaintop removal coal mining in West
Virginia. I provide the methods and technical guidance necessary to identify,
evaluate, and correct aquatic selenium problems before they become
significant toxic threats to fish and wildlife populations. I have Masters and
Doctorate degrees in biology from Wake Forest University.

1. Lemly, A.D. 1982. Response of juvenile centrarchids to sublethal
concentrations of waterborne selenium: I. Uptake, tissue distribution, and
retention. Aquatic Toxicology 2: 235-252.
2. Lemly, A.D. 1982. Determination of selenium in fish tissues with
differential pulse polarography. Environmental Technology 3: 497-502.
3. Lemly, A.D. 1983. A simple activity quotient for detecting pollution-
induced stress
in fishes. Environmental Technology 4: 173-178.
4. Lemly, A.D. 1985. Ecological basis for regulating aquatic emissions from
the power industry: The case with selenium. Regulatory Toxicology and
Pharmacology 5: 465-486.
5. Lemly, A.D. 1985. Toxicology of selenium in a freshwater reservoir:
Implications for environmental hazard evaluation and safety. Ecotoxicology
and Environmental Safety 10: 314-338.
6. Lemly, A.D. 1986. Effects of selenium on fish and other aquatic life.
Pages 153-162 in J.B. Anderson and S.S. Anderson, editors. Toxic Substances
in Agricultural Water Supply and Drainage: Defining the Problems. U.S.
Committee on Irrigation Drainage, Denver, CO.
7. Lemly, A.D., and G.J. Smith. 1987. Aquatic Cycling of Selenium:
Implications for Fish and Wildlife. Fish and Wildlife Leaflet 12. U.S. Fish and
Wildlife Service, Washington, DC. 10 pages.
8. Lemly, A.D. 1989. Cycling of selenium in the environment. Pages 113-123
in A.Q. Howard, editor. Selenium and Agricultural Drainage: Implications for
San Francisco Bay and the California Environment. The Bay Institute of San
Francisco, Tiburon, CA.
9. Lemly, A.D., and G.J. Smith. 1991. Selenium in aquatic ecosystems:
Potential impacts on fish and wildlife. In R.C. Severson, S.E. Fisher, Jr., and
L.P. Gough, editors. Proceedings of the Billings Land Reclamation Symposium
on Selenium in Arid and Semiarid Environments, Western United States. U.S.
Geological Survey Circular 1064: 43-53.
10. Lemly, A.D. 1993. Subsurface agricultural irrigation drainage: The need
regulation. Regulatory Toxicology and Pharmacology 17: 157-180.
11. Lemly, A.D., S.E. Finger, and M.K. Nelson. 1993. Sources and impacts of
irrigation drainwater contaminants in arid wetlands. Environmental Toxicology
and Chemistry 12: 2265-2279.
12. Lemly, A.D. 1993. Guidelines for evaluating selenium data from aquatic
monitoring and assessment studies. Environmental Monitoring and
Assessment 28: 83-100.
13. Lemly, A.D. 1993. Teratogenic effects of selenium in natural populations
of freshwater fish. Ecotoxicology and Environmental Safety 26: 181-204.
14. Lemly, A.D. 1993. Metabolic stress during winter increases the toxicity
of selenium
to fish. Aquatic Toxicology 27: 133-158.
15. Lemly, A.D. 1994. Agriculture and wildlife: Ecological implications of
subsurface irrigation drainage. Journal of Arid Environments 28: 85-94.
16. Lemly, A.D. 1994. Irrigated agriculture and freshwater wetlands: A
struggle for coexistence in the western United States. Wetlands Ecology and
Management 3: 3-15.
17. Lemly, A.D. 1995. A protocol for aquatic hazard assessment of selenium.
Ecotoxicology and Environmental Safety 32: 280-288.
18. Lemly, A.D. 1996. Selenium in aquatic organisms. Chapter 19 (pages
427-445) in W.N. Beyer, G.H. Heinz, and A.W. Redmon-Norwood, editors.
Environmental Contaminants in Wildlife: Interpreting Tissue Concentrations.
Lewis Publishers, Boca Raton, FL.
19. Lemly. A.D. 1996. Winter Stress Syndrome: An important consideration
for hazard assessment of aquatic pollutants. Ecotoxicology and Environmental
Safety 34: 223-227.
20. Lemly, A.D. 1996. Identifying and reducing environmental risks from
agricultural irrigation drainage in developing countries. Proceedings of the
World Congress of Toxicology in Developing Countries 3: 177-190.
21. Lemly, A.D. 1996. Assessing the toxic threat of selenium to fish and
aquatic birds. Environmental Monitoring and Assessment 43: 19-35.
22. Lemly, A.D. 1996. Wastewater discharges may be most hazardous to
fish during
winter. Environmental Pollution 93: 169-174.
23. Lemly, A.D. 1996. Evaluation of the hazard quotient method for risk
assessment of selenium. Ecotoxicology and Environmental Safety 35: 156-162.
24. Lemly, A.D. 1997. Ecosystem recovery following selenium contamination
in a freshwater reservoir. Ecotoxicology and Environmental Safety 36: 275-
25. Lemly, A.D. 1997. Environmental hazard of selenium in the Animas La
Plata Water Development Project. Ecotoxicology and Environmental Safety
37: 92-96.
26. Lemly, A.D. 1997. Role of season in aquatic hazard assessment.
Environmental Monitoring and Assessment 45: 89-98.
27. Lemly, A.D. 1997. A teratogenic deformity index for evaluating impacts
of selenium on fish populations. Ecotoxicology and Environmental Safety 37:
28. Lemly, A.D. 1997. Environmental implications of excessive selenium.
Biomedical and Environmental Sciences 10: 415-435.
29. Lemly, A.D. 1998. Pathology of selenium poisoning in fish. Chapter 16
(Pages 281-296) in W.T. Frankenberger and R.A. Engberg, editors.
Environmental Chemistry of Selenium. Marcel-Dekker Press, New York, NY.
30. Lemly, A.D. 1998. A position paper on selenium in ecotoxicology: A
procedure for deriving site-specific water quality criteria. Ecotoxicology and
Environmental Safety 39: 1-9.
31. Lemly, A.D. 1998. Belews Lake: Lessons learned. Pages 3-6 and E15-
20 in U.S. EPA Publication EPA-822-R-98-007. Report on the Peer
Consultation Workshop on Selenium Aquatic Toxicity and Bioaccumulation.
U.S. Environmental Protection Agency, Office of Water, Washington, DC.
32. Lemly, A.D. 1999. Case study: Contaminant impacts on freshwater
wetlands at Kesterson National Wildlife Refuge, California. Chapter 6 (pages
191-206) in M.A. Lewis et al., editors. Ecotoxicology and Risk Assessment for
Wetlands. SETAC Press, Pensacola, FL.
33. Lemly, A.D. 1999. Selenium transport and bioaccumulation in aquatic
ecosystems: A proposal for water quality criteria based on hydrological units.
Ecotoxicology and Environmental Safety 42: 150-156.
34. Lemly, A.D. 1999. Irrigation drainage. Pages 304-307 in M.A. Mares,
editor. Encyclopedia of Deserts. University of Oklahoma Press, Norman, OK.
35. Hamilton, S.J., and A.D. Lemly. 1999. The water-sediment controversy
in setting environmental standards for selenium. Ecotoxicology and
Environmental Safety 44: 227-235.
36. Lemly, A.D. 1999. Selenium impacts on fish: An insidious time bomb.
Human and Ecological Risk Assessment 5: 1139-1151.
37. Lemly, A.D., R.T. Kingsford, and J.R. Thompson. 2000. Irrigated
agriculture and wildlife conservation: Conflict on a global scale.
Environmental Management 25: 485-512.
38. Lemly, A.D. 2001. Irrigation-induced demise of wetlands. Pages 399-
410 in R.E. Munn and I. Douglas, editors. Global Environmental Change,
Volume 3: Causes and Consequences of Global Environmental Change. John
Wiley & Sons Ltd., Chichester, United Kingdom.
39. Lemly, A.D. 2002. Symptoms and implications of selenium toxicity in
fish: The Belews Lake case example. Aquatic Toxicology 57: 39-49.
40. Lemly, A.D., and H.M. Ohlendorf. 2002. Regulatory implications of using
constructed wetlands to treat selenium-laden wastewater. Ecotoxicology and
Environmental Safety 52: 46-56.
41. Lemly, A.D. 2002. A procedure for setting environmentally safe Total
Maximum Daily Loads (TMDLs) for selenium. Ecotoxicology and Environmental
Safety 52: 123-127.
42. Lemly, A.D. 2002. Selenium Assessment in Aquatic Ecosystems: A Guide
for Hazard Evaluation and Water Quality Criteria. Springer-Verlag Publishers,
New York, NY.
43. Lemly, A.D. 2004. Aquatic selenium pollution is a global environmental
issue. Ecotoxicology and Environmental Safety 59: 44-56.
44. Kingsford, R.T., A.D. Lemly, and J.R. Thompson. 2006. Impacts of dams,
river management, and diversions on desert rivers. Chapter 8 (pages 203-
247) in R.T. Kingsford (editor). Ecology of Desert Rivers. Cambridge
University Press, UK.
45. Lemly, A.D. 2007. A procedure for NEPA assessment of selenium hazards
associated with mining. Environmental Monitoring and Assessment 125: 361-
46. Lemly, A.D., and J.P. Skorupa. 2007. Technical issues affecting the
implementation of US Environmental Protection Agency’s proposed fish tissue-
based aquatic criterion for selenium. Integrated Environmental Assessment
and Management 3: 552-558.
47. Lemly, A.D. 2008. Aquatic hazard of selenium pollution from coal mining.
Chapter 6 (Pages 167-183) in G.B. Fosdyke (editor). Coal Mining: Research,
Technology, and Safety. Nova Science Publishers, New York, NY.
48. Palmer, M.A., E.S. Bernhardt, W.N. Schlesinger, K.N. Eshleman, E.
Fonfoula-Georgious, M.S. Hendryx, A.D. Lemly, G.E. Likens, O.L Louck, M.E.
Power, P.S. White, and P.R. Wilcock. 2010. Mountaintop mining
consequences. Science 327: 148-149.

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