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Lawsuit tests use of coal ash for remediating mine waste

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Residents living near the LaBelle Refuse Site, a coal waste site located along the Monongahela River in southwestern Pennsylvania, are going to court over what they claim is illegal disposal of coal ash and treatment of coal mine waste.

The Citizens Coal Council, a national alliance of citizens' groups, filed a legal complaint against Matt Canestrale Contracting Inc. on June 26 in the U.S. District Court for the Western District of Pennsylvania. Attorneys from the Environmental Integrity Project, Public Justice, and Goldberg, Persky & White P.C. representing CCC announced the lawsuit.

Canestrale disposes of more than 100,000 tons per year of coal combustion residuals, or CCRs — commonly known as coal ash — from FirstEnergy's Mitchell plant and GenOn Energy's Elrama plant at an old, unlined coal waste disposal site at LaBelle, Pa., on the Monongahela River south of Pittsburgh.

It's an activity FirstEnergy calls a "coal mine reclamation project" and CCC's attorneys call a "coal ash mine dump" —  a difference of language that points to a gap, a still ill-formed gray area, in the ongoing dialogue about the disposition of CCRs.

Electric utilities and coal producers like to mix alkaline coal ash with acidic coal mine refuse as a mine remediation technique. Both industries claim it's a mutually beneficial arrangement that makes good use of what otherwise would be alkaline power plant waste to solidify and neutralize coal refuse that otherwise would create acidic, polluting runoff and leachate.

But citizens' and environmental groups point to evidence that the acidic and alkaline materials don't neutralize each other and the coal ash doesn't solidify, and that adding coal ash to coal refuse only increases the leaching of toxic substances.

But there's not yet any clear regulatory guidance.

The Environmental Protection Agency encourages beneficial re-use of any waste product for substances that are judged to be safe. For CCRs, that can mean, for example, re-use in cement block or in drywall.

For CCRs that aren't re-used, the agency currently is in a long-delayed process of determining whether those that are disposed of should be regulated as hazardous waste or as household waste.

But even that won't address the question of their use for coal mine reclamation. That is expected to be addressed by the federal Office of Surface Mining and Reclamation Enforcement, possibly not until after the EPA's delayed rules are finalized.

"One of the goals of this suit is to illustrate that we do need a good rule from OSM," said Public Justice attorney Richard Webster.

The June 26 complaint alleges that Canestrale is violating the federal Resource Conservation and Recovery Act and state laws designed to protect rivers and streams as well as laws that reduce fugitive particulate matter pollution.  

The refuse site is polluting local streams with high levels of sulfate, iron, manganese and other salts that damage fish and other aquatic life, according to suit. It also is leaking aluminum, manganese, sulfates and total dissolved solids into groundwater at levels that are above Pennsylvania drinking water standards.  

Fugitive particulate matter also blows from trucks hauling coal ash without required covers, the suit states.

Concerns about pollution caused by the refuse site prevent local residents from hunting, fishing and engaging in outdoor recreation along the Monongahela River and its tributaries near the dump, the groups say.

Canestrale currently is seeking the site's third permit renewal since it opened in 1998, according to the Pittsburgh Tribune-Review.

And when FirstEnergy committed earlier this year to close its Little Blue Run coal ash impoundment at the West Virginia-Pennsylvania border by 2017, it announced that it would shift the disposal of 3 million tons per year of power plant scrubber waste to the LaBelle Refuse Site.

The arrangement would have to be approved by the Pennsylvania Department of Environmental Protection, the company said at the time.