Testimony at the US Commission on Civil Rights Public Briefing

Below is the testimony provided on Feb. 5, 2016 by Michael D. Smith on the U.S. Commission on Civil Rights Briefing Related to its 2016 Enforcement Report, Environmental Justice: Toxic Materials, Poor Economies, and the Impact of the Environment of Low-Income, Minority Communities. 

Good afternoon Mr. Chairman and Commissioners. My name is Mike Smith and I represent Arrowhead Landfill just as I have since it opened for business in October of 2007. With me today are the Ernest Kaufmann, President of Green Group Holdings, the owner of the landfill, and Bill Hodges the landfill’s engineer of record. We are all extremely happy to be here and appreciate and look forward to having the opportunity to host all of you on a tour of Arrowhead when you come to Uniontown later this month. I would like to add a note of personal thanks to your staff for their assistance with both our appearance here and the logistics for your upcoming visit.

I have represented in some capacity every owner and/or operator of Arrowhead Landfill since it opened in October of 2007 and I currently represent Green Group Holdings, LLC and Arrowhead Landfill. I have been proud to represent all of these entities and equally proud of their unblemished environmental record. There have been times I have been concerned by decisions made, or imposed upon them, regarding their communication with the community. Green Group has continued the excellent environmental record of this facility and has been a model of transparency and community relations in the time since they purchased Arrowhead in December of 2011.

In her written testimony to the commission two weeks ago, Betsy Devlin of EPA stated that the final CCR rule which became effective October 19, 2015, established for the first time minimum national standards specifically tailored to address particular risks that the mismanagement of CCRs can present to human health and the environment. Those risks are said to include

“… the risks associated with groundwater and surface water contamination, as detailed in EPA’s risk assessment, and the 157 known damage cases EPA has identified. EPA developed each of the rule’s technical requirements to ensure that any risks from the management of CCR to any potentially exposed individuals would be addressed. Moreover, the requirements were designed to achieve the statutory standard of ‘no reasonable probability of adverse effects on health or the environment’ at all sites – meaning that these standards are protective of all sites, including those that are highly vulnerable.”

Ms. Devlin also testified about some of the requirements designed to detect potential contamination as early as possible, to remedy any contamination of concern that has occurred and to prevent future contamination. Some of those requirements include:

  1. Siting of disposal facilities in locations that are not highly sensitive or otherwise susceptible to contamination such as wetlands, fault areas, seismic impact zones or other unstable areas.
  2. A system of monitoring wells and procedures for sampling and analyzing the data from that sampling to detect the presence of any potentially hazardous constituents.
  3. Locating disposal cells or units above the uppermost aquifer on the site.
  4. Construction of disposal cells with composite liners to prevent contaminants from ?leaching into the groundwater.
  5. Construction of leachate collection and disposal systems that collect and remove ?leachate from the cell to further reduce the possibility of contaminants leaching into ?the groundwater.
  6. Criteria for preventing CCR from becoming airborne at a facility.
  7. Provisions to manage the flow of water into the disposal cell.
  8. Closure and post closure requirements.

Arrowhead meets, and has met for the most part from its opening, those requirements.

  • Arrowhead is located in an area directly above the Selma chalk. The chalk is a low permeability formation that lies less than 50 feet below the surface and extends to a depth of between 500’ and 600’ across the property. It is literally one of the best imaginable ?locations for siting a landfill and this location was chosen precisely for that reason. (For more detail on the site see JJG Hydrogeologic section from Permit Application – September 2005, attached as Exhibit 1.)
  • Arrowhead has a system of monitoring wells and a sampling protocol in full compliance with all of the new CCR rule’s requirements. It has a history of testing dating to June of 2007, several months before the landfill opened. The monitoring well system and testing protocols were designed by an independent third party engineering firm and that firm conducted the required testing and analysis of the results obtained.
  • Arrowhead’s disposal cells are located some 500’ above the uppermost aquifer on the site (the Eutaw aquifer).
  • Arrowhead has a highly engineered, constructed and inspected composite liner system that meets all requirements of the new CCR rule.
  • Arrowhead has a leachate collections system that meets all requirements of the new CCR rule. Leachate is collected and removed by sumps to a tank where it is stored until it is either trucked to the Demopolis POTW for disposal and treatment in compliance with an ADEM issued permit or recirculated within the waste disposal cell as allowed by its landfill permit.
  • At Arrowhead, when accepting CCR waste from Kingston (the “Kingston project”), the ash was exposed only in its moist state during the time it was being transferred from the railcars to the landfill cell and was covered before it had an opportunity to dry. The ash, when exposed, was always in a moist condition and never was a threat to become airborne. To provide assurance that there were no issues with fugitive dust, the landfill’s operator established an onsite, real-time air monitoring program. This was not required by any local, state, or federal regulatory agency, nor was it required by the contract with TVA. This program was established to monitor the “dust” levels at points along the fenceline of the landfill property where activity was greatest. Dust concentrations throughout the duration of the project were consistently well below the National Ambient Air Quality Standard (NAAQS) for PM10 and never exceeded those standards. Additionally, employees wore portable air monitors throughout the Kingston project.
  • Storm water is managed at Arrowhead to prevent to the extent possible storm water from entering the disposal cells to standards meeting those in the new CCR rule.
  • The disposal cells at Arrowhead where CCR from Kingston was placed have been capped and closed since February, 2012, and have been in post closure care since that time. Closure and post closure meet all standards set in the new CCR rule. (For a more in depth and documented comparison of Arrowhead’s status to the design and operational requirements of the new CCR Rule, see attached Exhibit 2.) This closure includes full coverage with both a soil and synthetic membrane cover to assure there is no spillage or release of the CCR waste. (See Construction Quality Assurance Report prepared by Bunnell-Lammons Engineering, Inc., dated July 29, 2011, attached as Exhibit 3.)

At present we are working to implement the notice provisions through our website and should complete this process in the very near future.

Both Ms. Devlin and Mr. Tejada described the new coal ash rule as being protective in nature with Ms. Devlin stating in her written testimony that the rules’ “requirements were designed to achieve the statutory standard of ‘no reasonable probability of adverse effects on health or the environment’ at all sites – meaning that these standards are protective of all sites …”. Mr. Tejada reaffirmed this aim in his oral testimony and in his written testimony talked about Environmental Justice being achieved when all people, regardless of race, color, national origin, or income, enjoy “the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn, and work.”

One of Arrowhead’s detractors, John Wathen, during an interview regarding the Kingston Project asked the following question:

These are human beings and they have the same rights as anybody in Kingston, Tennessee, regardless of the color, regardless of the property value of their land, they have the same rights under the Constitution as anybody in Swan Pond – why are they being treated differently?

I would agree with Mr. Wathen that there was disparate treatment of the communities in Uniontown (where the “Time Critical” CCR was disposed of) and Swan Pond (where the “Non- Time Critical” CCR was disposed of), but I don’t agree that it was the community around Arrowhead that drew the short straw. (The two disposal facilities are compared in Exhibit 4.)

Arrowhead disposed of the Time Critical CCR waste in a manner fully consistent with the new CCR rules some six (6) year prior to their being implemented. Swan Pond, under a plan approved by EPA, fell short in what are possibly the three most critical aspects of the CCR rules: (1) no composite liner (or liner of any sort); (2) no leachate collection and disposal system; and (3) coal ash was left in the groundwater to a depth of forty (40) feet. It seems clear that of the two facilities, Arrowhead is the safer and more environmentally secure site for CCR disposal.

One of the panelists earlier today was reported to ask the following question – actually two or three questions – regarding Arrowhead:

“Why did Uniontown become the dumping ground for the eastern half of the country, and then why did it become the dumping ground for coal ash?” Going on to say “No one thought that the members of this poor community would fight back or that anyone would listen to us.”

First, though Arrowhead is permitted to accept waste from 33 states, it has accepted waste from only four, Alabama, Tennessee, Maine and New Jersey. Green Group has a relationship with Phillips & Jordan, Inc., one of the largest and most successful disaster relief and emergency response contractors in the country. One of the things I learned in executing the clean up following the tornadoes in my hometown of Tuscaloosa is that it is difficult and costly to segregate storm waste into both C&D and MSW waste streams. As a result, most disaster waste must be disposed of in a Subtitle D landfill. Arrowhead is sited on the Norfolk Southern rail system and is uniquely situated to take large volumes of waste from such events or from others with a high volume of a particular waste such as occurred after the Kingston release. It saves a tremendous amount of airspace in the local landfills, which are necessary to the lifeblood of the community, if space is made available at alternative sites with adequate logistical support – such as Arrowhead. Using rail also takes such waste off the roads which TVA determined to be of great significance in the safe transport of its “Time Critical” CCR waste. In order to be able to accept large volumes of this and other wastes, such as the CCR waste taken in the Kingston project, a facility must be authorized under its permit to take waste from the state of origin.

Arrowhead was determined to be the best and safest alternative for the disposal of CCR waste from the Kingston release. TVA with guidance from EPA went through a lengthy vetting process before awarding the disposal contract to the bidder affiliated with Arrowhead. (See attached Exhibit 5.) Further, ADEM spent significant time reviewing analysis of 29 samples taken from a broad cross section of the CCR that had been recovered by the time testing began in early January, 2009. (A summary of that testing is attached as Exhibit 6 and the actual documentation is attached as Exhibit 7.) That review lead to ADEM’s issuing a letter approving of disposal of the CCR at Arrowhead with certain continuing requirements for testing. (A summary of that continued testing is attached as Exhibit 8.) In the end, Arrowhead was selected as the best location for disposal by TVA and EPA concurred that the best place for the CCR waste was Arrowhead because:

The Arrowhead Landfill is a state-of-the-art, Subtitle D Class I facility. The composite liner system consists of 2 feet of 1 x 10-7 cm/sec compacted clay, a 60 mil high density polyethylene geomembrane liner, and a 2 foot thick drainage layer with a leachate collection system and protective cover. The site geology consists of the Selma Group chalks which ranges from 500 to 570 feet thick across the site, with a permeability less than 1 x 10-8 cm/sec. The uppermost groundwater aquifer is located beneath this layer.

Hardly a dumping ground, Arrowhead was clearly the preferred site and its unique geology and transportation advantages lead to its selection by TVA and the approval of that selection by EPA.

Finally, members of the community did fight back regarding CCRs and they were heard and responded to. An Environmental Justice complaint was lodged against EPA regarding its approval of the plan to dispose of CCR waste at Arrowhead, which is summarized as follows:

It was alleged that EPA Region 4 officials failed to properly execute their official duties by not appropriately considering the environmental justice concerns and potential health hazards associated with the disposal of coal ash in the Arrowhead landfill.

The complaint was referred to the Office of Inspector General for EPA for investigation and response. The response was made by the OIG on June 14, 2010, noting that selection of Arrowhead landfill for the disposal of CCR met or exceeded all of the criteria established under the Administrative Order of Consent between EPA and TVA, the OIG found as follows:

Our evaluation of this allegation disclosed no wrongdoing by EPA employees, and we discovered no other viable criminal, civil, or administrative violations. Accordingly, this complaint was closed. (See Exhibit 9 for full OIG report.)

Arrowhead has been the subject of an abnormally high number of unfounded complaints from those claiming to have been adversely affected by its operations. From the same panelist appearing earlier today, you heard an example of one such claim when it was at least implied that lead leaching from CCRs from the Kingston release had caused one panelist to suffer from neuropathy. Strange this allegation was heard for the first time concurrent to the publicity surrounding the true environmental disaster that is playing out in Flint, Michigan.

With regard to the statement today, first as you can readily see from the summary of groundwater test results (See Exhibit 10 as supported by the documentation in Exhibit 11.) since Arrowhead accepted its first waste on October 15, 2007, there have been no groundwater tests with a positive result for lead. Second, the panelist making that statement is served by the City of Uniontown’s public water system, not a private water well. Third, should the claim change to allege airborne ingestion of lead, the panelist lives just over four miles to the west of Arrowhead and is unlikely to have ingested airborne lead for the reasons set forth in the aeromodeling section of Exhibit 12. Fourth, the CCR waste that arrived and was disposed of arrived in a moist condition and never was exposed to the winds in a dried condition. Fifth, the CCR waste from Kingston did not contain a hazardous concentration of lead (or any other metal). In the most detailed testing of the coal ash, that done in Kingston and and submitted to state regulators (including ADEM) by TVA for review in considering allowance of disposal, the highest test result for lead was only 3.4% of the applicable RCRA regulatory level for classification as a hazardous waste. (See pages 3 and 4 of Exhibit 6.) This claim is based on the basest speculation as to both the cause of her condition and source of exposure for that alleged cause.

Such speculation has been a common theme born of misinformation from outsiders with alternate agendas unrelated to Uniontown and an admitted failure of those associated with the Kingston project to keep open lines of communication with the public. In litigation alleging violations of the Clean Air Act and the Solid Waste Disposal Act (There was no Clean Water Act claim nor have their ever been any allegations concerning surface water issues.) by the operators of the unloading facility and landfill during the Kingston project, I sat in on the depositions of virtually all 70 of the Plaintiffs who submitted themselves to testify rather than have their case dismissed. I have read and re-read all of those depositions. Fifty (50) of the sixty nine (69) who actually appeared and testified admitted that they had suffered no ill health or other personal injury.

 

A majority of the remaining plaintiffs complained of a worsened pre-existing condition and none had a physician or medical records indicating a tie between Arrowhead and their health complaints. The deposition responses regarding testing of the air and groundwater were similar. (This despite the Plaintiffs having been represented by another panelist here and a second law firm that paid in excess $70,000 to an “expert” who admitted he had no evidence that CCRs ever left Arrowhead’s property and whose testimony regarding hydrogen sulfide dispersion modeling was based not on data derived from Arrowhead (a Subtitle D – MSW – landfill), but a C&D landfill in Florida. The “expert” testimony was subject to a very serious Daubert challenge that was pending at the time the case was settled. See Exhibit 12 to contrast expert testimony based upon facts and data directly attributable to Arrowhead and comment upon the Plaintiffs’ “expert’s” opinions.)

Forty nine (49) of the sixty nine (69) knew of no testing that was done on their property. Fifteen (15) more said that water and/or air were tested (most say tests were conducted by John Wathen) but that they had gotten no results. The remaining five (5) plaintiffs’ testimony was somewhat confusing1 (For example, one Plaintiff testified that the City had tested the water and said it was OK, but he also testified that he was served by a private well, not the city water system.) with the notable exception of Booker Gipson whose property is directly across County Road 1 from the cell where CCRs were placed. He testified that he had been told not to drink the well water because it contained bacteria, something unquestionably not attributable to either the landfill or CCRs. (I have not attached these depositions due to their collective length; however if any Commissioners would like to review them, I will be happy to provide them.)

Just this week, an article/letter to the Editor appeared in the Knoxville News Sentinel stating:

Following the 2008 Kingston disaster, TVA approved what was ultimately an act of environmental racism and community destruction. The coal ash from the spill around the Kingston Fossil Plant was shipped by rail to Uniontown, in Perry County, Alabama. For just $1 per ton, millions of tons of toxic coal ash were dumped at an unlined and uncovered landfill. Today, that mountain of coal ash is treated like household garbage and wind and rain carry it into the nearby homes of predominantly low-income black residents. These residents are reportedly developing respiratory illnesses and cancers because TVA chose to cut costs with unsafe disposal instead of safely storing the coal ash. We cannot allow this to ever happen again. (Knoxville News Sentinel, guest opinion, February 1, 2016, David Wasilko, an engineering student at the University of Tennessee*) 

*This paragraph has since been removed by the publication. 

One may be able to discount this as the writing of a college student simply uninformed as to the facts and reading snippets from activist webpages. The following quote is a little harder to understand or justify:

So what about that “dry landfill” in Uniontown, Ala.? The coal ash shipped from the Tennessee spill resides in an unlined and uncapped facility; it dries into dust and blows with the wind despite the grass that covers it, and is leaking into streams adjacent to the site when it rains.

He showed us the streams that flowed from the unlined facility carrying unmistakable evidence of coal ash. He noted how a nearby resident could no longer keep his windows open, and had trouble breathing outside their homes. He introduced us to neighbors of the facility whose laundered clothes were blackened while hanging out to dry. (New York Times, Robert Goldstein, January 19, 2015)

The reason it so hard to understand is that it comes from an opinion piece written by a Professor at the United States Military Academy (and a former general counsel for the environmental group Riverkeeper – Or maybe it’s not so hard to understand.). Such an utter lack of even the most minimal investigation reflects an attitude of both bias and academic dishonesty. A quick online search of the Alabama Department of Environmental Management’s (“ADEM”) website would have revealed that Arrowhead is a lined facility with a leachate collection system and that the area where the coal ash from the Kingston release was stored has been capped. This piece incited a quick and forceful response from the Director of ADEM. (See letter from Lance R. LaFleur, Director to Robert J Goldstein dated January 22, 2015 attached as Exhibit 13.)

To say that ADEM tired of the repeated and baseless complaints against Arrowhead and the needless expenditure of its resources is an understatement as reflected in a letter from its Director to the Environmental Management Commission where he related the following:

EPA’s decision to allow disposal of the Tennessee Valley Authority’s remediation waste in a Perry County landfill has generated a lot of activity. ADEM staff has worked diligently to ensure itself that the landfill is in compliance with all laws and regulations. The issues in Perry County are exacerbated by the media and public scrutiny produced due to this incident and the resulting waste stream. The recent involvement of an attorney representing 150 residents opposing the remediation waste at that landfill has also increased the scrutiny. Multiple 60-day-notices have been filed under various federal acts, the most peculiar of which was filed under the Clean Air Act alleging that the remediation waste emitted an odor that caused health problems.

These notices have provoked EPA to continually question our staff on multiple compliance issues. As this practice by EPA started becoming unnecessarily resource-intensive for ADEM, Marilyn Elliott and I scheduled a meeting with EPA Region IV on January 25, 2010.

During the discussion, I produced a jar containing a sample of the remediation waste I had our inspectors procure from an incoming rail car. During the meeting I opened the jar and had EPA representatives smell the contents, at which point they acknowledged they could smell nothing. The outcome of this meeting was an acknowledgement between EPA Region IV and ADEM that the incremental program scrutiny they were applying to Alabama’s Solid Waste Program was not conducive to the successful implementation of environmental laws and regulations. We have since developed a cooperative relationship with Region IV on this matter. (See letter from John P. Hagood, Director, to Alabama Environmental Management Commission dated February 5, 2010 attached as Exhibit 14.)

There were two issues that the community raised during the Kingston project that were undeniably legitimate concerns. One was the location of the disposal cell as close as was allowed by law to County Road 1 across that road from residents’ homes, and the other was the use of a gate onto County Road 1 as the “Main Gate” through which all construction and waste disposal trucks (non CCR waste vehicles) (CCR waste was hauled on an internal road by off road dump trucks and never left Arrowhead property.) travelled and consequently tracked mud and dirt onto County Road 1. Neither Green Group nor I had any input whatsoever into either of these decisions. Neither of us would have recommended the disposal cell location and the truck traffic was an unfortunate necessity to assure safety by preventing construction and waste trucks from traveling the same haul road. (One of Green Group’s first actions upon taking ownership of Arrowhead was to improve at significant expense the three miles of crushed limestone road from Tayloe Road and close the gate on County Road 1. There are no residences on Tayloe Road affected by the truck traffic.) These unfortunate circumstances together with both the previously mentioned misinformation and an admitted failure to communicate have contributed greatly to the negative feelings some very few members of the community have toward Arrowhead. Many in the community are very supportive of Arrowhead and particularly Green Group and I encourage you to read the testimonials, that are attached as Exhibit 15. They say more than I can about how the community views Green Group and its efforts to establish itself as a good corporate citizen and their willingness, in most cases, to have Arrowhead accept future deliveries of CCR.

Green Group has a spotless environmental record and has multiple neighbors with whom it co-exists peacefully. There have been no complaints or concerns expressed by: the cattleman who has over three hundred head of cattle on the adjoining property, the catfish farm located along Tayloe Creek less than 1?2 mile from the landfill entrance where over 10 million pounds of catfish are raised annually, or either of the two wildlife preserves enclosed by miles of “high fences” each consisting of in excess of 3,000 acres and each located within three miles of the landfill. Those neighbors also include the healthy herds of deer, the abundant wild turkeys, ducks, geese, dove and the two adult and two juvenile bald eagles who roam the area.

Finally, I was asked to comment on the effect the new CCR rules would have on Environmental Justice issues. Like Ms. Devlin and Mr. Tejada, I believe these rules should be protective of all people. I believe that they are and that when implemented and enforced there will be “no reasonable probability of adverse effects on health or the environment” and all in the community will be equally protected. I am not concerned in the least about enforcement being left to citizen suits. There are a plethora of attorneys and special interest groups willing to fund investigation, research and litigation. I have defended more than my share of meritless lawsuits under a wide variety of laws and theories. My only recommendation for change would be to include a requirement for a more significant buffer between existing homes and the boundary of any future disposal cells.

 

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