Report Recommends Remediation of AEP Coal Ash Ponds

Yesterday, the Environmental Protection Agency (EPA) released a report it commissioned on the fly ash and bottom ash ponds at American Electric Power's (AEP's) Philip Sporn Generating Plant in New Haven, West Virginia. The full report can be read here.

The report is part of EPA's investigation into the state of coal ash impoundment facilities around the country, in the wake of the massive coal ash spill at a TVA facility in Kingston, Tennessee last Christmas. Coal ash is currently classified by the EPA under RCRA (the Resource Conservation and Recovery Act, 42 U.S.C. 9601 et seq) as non-hazardous, despite massive heavy metal content, and is governed only by (generally lenient) state regulations as a result. (You can read an earlier post on coal ash, how the current regulatory regime came to be, and the Kingston spill here.),


The report concluded that the ash ponds at the AEP facility had a poor prognosis "for continued safe and reliable operation," and that "[r]emedial action is necessary." It is curious in light of this report that, once it received the report, EPA only asked AEP to conduct safety inspections of the facility. (And perhaps explains why EPA announced that it was asking for inspections on October 29th, but embargoed the report until yesterday.)

EPA is (possibly) limited in its ability to act to prevent imminent release of the coal ash under RCRA (because of its decision to classify coal ash as non-hazardous), but should have plenty of authority under CERCLA and leverage under the Clean Water Act (given the proximity of the Ohio River to the site). Obviously, EPA is proceeding gingerly, since AEP isn't used to being regulated for this sort of thing at all. (A more in-depth discussion of the disconnect between the report's conclusions, and EPA's actions, can be read here on the Charleston Gazette's Coal Tattoo blog.)

[Ed's note: "I've been coal miner all of my life. Layin' down track in the hole. . . . I've got no house and I got no job, just got a worried soul. And a blue tattoo on the side of my head left by the number nine coal. Left by the number nine coal." Coal Tattoo, Billy Ed Wheeler.]

Riverkeeper Uses CWA to Challenge Improper CERCLA cleanup

In an interesting coalescence of two different statutes, a company redeveloping a water front Superfund site in Oregon has been sued for violating the Clean Water Act in the process of that redevelopment. According to this article from the Oregon Daily News, Columbia Riverkeepers has sued Chinook Ventures for illegally dumping pollutants it is handling as part of the remediation of a former Reynolds Aluminum manufacturing facility on the Columbia River, using the citizen suit provisions of the Clean Water Act. Chinook is redeveloping the site, which is listed under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), to make into a private port facility. There's not much more out there on the case, but it is noteworthy, insofar as one would assume that a company conducting a CERCLA cleanup would have swarms of environmental consultants supervising the work to limit liability and ensure the work is completed to the Act's standards.

Nice try, but...

Second Circuit rules that first responder is not a PRP under CERCLA

The Second Circuit handed down a Superfund decision in AMW Materials Testing v. Town of Babylon yesterday, rejecting the claim of an aerospace metal finishing company that--get this--the local fire department was liable for a share of the cleanup costs from a release under CERCLA that occurred when their Amityville, New York facility was destroyed in a catastrophic fire ten years ago.

The claim--which shows off plaintiff's counsel's issue-spotting skills--was that the fire department became an "operator" under CERCLA § 101(20)(A)(ii) for the purposes of section 107 liability, under the Supreme Court's broad definition of that term from United States v. Best Foods, 524 U.S. 51, 66 (1998) (“someone who directs the workings of, manages, or conducts the affairs of a facility”). The Supremes went broad in an attempt to flesh out a not-very-helpful statutory definition (i.e. "any person owning or operating such a facility," 42 U.S.C. 9601(20(A)(ii)), and did include, as an example, "a saboteur who sneaks into the facility at night to discharge its poisons out of malice." 524 U.S. at 65. But the bit that plaintiff's counsel overlooked was that the Supremes also specified that, to be an "operator," a party must exercise control over the hazardous materials at issue. Id. at 66-67 ("an operator must manage, direct, or conduct operations specifically related to pollution, that is operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations."). The Second Circuit panel noted that although "defendants controlled firefighting operations at the AMW site, the hazardous materials at issue were stored in a burning building to which firefighters could not gain safe entry." (Slip op. at 11).

For good measure, the panel went on to rule that CERCLA § 107(d)(2)'s exemption for state or local government first responders insulated the fire department from liability except in the case of gross negligence in their response. The plaintiffs had challenged the applicability of the first-responder exemption, arguing that it applied only to CERCLA § 113 contribution actions, but not the CERCLA § 107 cost-recovery provision, but the Second Circuit rejected this as baseless and nonsensical. (Slip op. at 16).

So there you have it folks. Next time you are storing a lot of nasty chemicals that catch fire, don't think you can get out of the cleanup just because the fire department shows up to prevent a greater catastrophe.