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HomeMy WebLinkAboutNCG020354_Ltr re Mine Reclamation_20181120 • AVcQ0zo351- J gite- -4 LAW OFFICES OF f ��� F. BRYAN.BRICE, JR. 1 F.BRYAN BRICE,JR. CATHERINE CRALLE JONES 127 W.HARGETT ST.,STE.600 SETH E.BAREFOOT RALEIGH,NC 27601 ROBERT R.GELBLUM,OF COUNSEL WW TEL:ANBRJ 4-1600 W .ATfYBRYANBRICE.COM November 20,2018 c c VIA USMAIL/EMAIL COVED I,GV 2 7 201R Michael S. Regan, Secretary ,, North Carolina Department of EnvironmentalQualityvT MwA�R PQUA��� 217 West Jones Street R�iITTlNG Raleigh,NC 27603 Re: SOLID WASTE MANAGEMENT FACILITY STRUCTURAL FILL,MINE RECLAMATION Permit Nos. 1910 and 5306, Brickhaven No. 2 Mine Tract "A" and Colon Mine Site (in conjunction with NCDENR DEMLR MINE PERMITS 19-25 and 53-05) Dear Secretary Regan: On behalf of the Blue Ridge Environmental Defense League ("BREDL"), we request that you initiate immediate action to reopen the permits issued by the Department of Energy, Mineral and Land Resources ("DEMLR") and Division of Waste Management ("DWM") for the mining and development of fully lined structural fill projects at the former clay mines in Lee and Chatham counties referenced above. Unless your office takes immediate action,the permits will allow for toxic constituents to enter undetected into North Carolina ground and surface waters. Further, the actions allowed by the permits would have a significant and adverse impact on the health and well-being of the property owners, families, and individuals surrounding these facilities. These actions will also negatively impact the use and enjoyment of their property, the value of their property, and their other economic interests. We believe that the permits do not merely fail to comply with state statutes and regulations, but their issuance was based "upon incorrect or inadequate information that materially affected the decision to issue the permits" and are subject to suspension or revocation, and, impliedly modification, pursuant to N.C. Gen. Stat. § 130A-23(a). Thus, there is ample evidence to help you and your staff to understand that the permits should be reviewed pursuant to the statutory and regulatory framework. In our view, the permits should be revoked or materially modified and/or corrected based upon the correct and adequate information which should have been considered. November 20, 2018 Page 2 of 9 Background The Brickhaven and Colon facilities are former open-pit clay mines which borrowed clay to support brick manufacturing. The Brickhaven facility is located on Moncure Flatwood Road near Moncure, North Carolina, in Chatham County. The facility is designed to accept up to 12 million tons of Coal Combustion Residuals (CCRs) for permanent disposal as structural fill in an approximately 145-acre landfill. The Colon facility is located near the intersection of Post Office Road and Brickyard Road in the community of Colon, Lee County, North Carolina. To date, the Colon site has not received any CCRs. Legal Basis for Request to Re-Open Permits 15A NCAC 13B .1604 GENERAL REQUIREMENTS FOR MSWLF FACILITIES governs those permits issued by the Division for new and existing MSWLF facilities subject to the requirements set forth by law. Specifically, 15A NCAC 13B .1604(b)(2)(F) states: A permit may be modified, revoked and reissued, or terminated for cause in accordance with G.S. 130A-23. The filing of a request by the permittee for a permit modification or termination, or a notification of planned changes or anticipated noncompliance, does not stay any existing permit condition. Specifically, N.C. Gen. Stat. § 130A-23(a) provides "The Secretary may suspend or revoke a permit issued under this Chapter upon a finding that a violation of the applicable provisions of this Chapter, the rules of the Commission, or a condition imposed upon the permit has occurred. A permit may also be suspended or revoked upon a finding that its issuance was based upon incorrect or inadequate information that materially affected the decision to issue the permit." The two permits contain a litany of terms and conditions which must be met, in accordance with not only the state laws,but federal laws as well.See Attachment 1, Paragraph 8. In both permits,Paragraph 5 of Attachment 1 clearly states, "Operation of this structural fill shall be in accordance with the Solid Waste Management Rules, 15A NCAC 13B, Article 9 of the Chapter 130A of the North Carolina General Statutes, the conditions contained in this pennit, and the approved plan...Failure to comply shall be a violation and may result in enforcement or permit revocation." Furthermore, in both permits, Paragraph 17 of Attachment 2 clearly states, "Facility construction, operations or practices must not cause or result in a discharge of pollution, dredged material, and/or fill material into waters of the state in violation of the requirements under Section 401 and 404 of the Clean Water Act, as amended."Therefore,the permits themselves 2 November 20,2018 Page 3 of 9 acknowledge that the Administrative Code, as well as the General Statutes and Clean Water Act, govern the suspension or revocation of the permits, as well as any compliance with all conditions precedent to the continuation of the permit. Evidence Showing Incorrect/Inadequate Information Materially Affecting Permit Issuance In early 2018, BREDL commissioned a study by Groundwater Management Associates, Inc. ("GMA") to evaluate the data and conclusions offered by the permittees' consultant, HDR, regarding groundwater flow and evidence of possible groundwater contamination by CCRs that are being disposed in the Brickhaven No. 2 Mine Tract "A" facility. In September 2018, GMA was again contracted by BREDL to provide a technical review of the hydrogeologic investigations, interpretations of groundwater flow conditions, and any available groundwater- quality data associated with Charah's permit application for the Colon coal ash landfill facility in Lee County,North Carolina. The GMA report regarding the Brickhaven No. 2 Mine Tract "A" facility ("Brickhaven Report") indicated numerous issues with the state-approved plan for monitoring the safety of a coal ash repository in Chatham County and the likely inability to accurately detect groundwater contamination. The GMA report regarding the Colon coal ash landfill ("Colon Report").found the Design Hydrogeologic Report lacked sufficient data to fully evaluate the suitability of the Colon facility for accepting CCRs as structural fill in a lined landfill facility. Both Reports detailed numerous scientific, engineering, and monitoring-related issues and deficiencies associated with two sites. A. Baseline Detection Value Issues: The Brickhaven Report found that the initial baseline groundwater monitoring performed at the site indicated elevated concentrations of numerous constituents that were kraturally occurring, with several of those constituents exceeding the NC Groundwater Quality Standards. The Brickhaven Report concluded the elevated background concentrations would make it difficult to accurately discern if changes in constituent concentrations in the groundwater monitoring wells are natural variations or if they are associated with a release of contaminants from the disposal CCRs in the landfill. The Colon Report found the Water Quality Monitoring Plan (WQMP) prepared by Buxton (March 6, 2015), which described the proposed groundwater monitoring program to detect a future release occurring from the Colon facility, included eight "background" water- quality monitoring events. However, only one "background" event was planned prior to placement of CCRs in the landfill. Although this plan was approved by DEQ, the fact that CCRs would be placed in the landfill during seven of the monitoring events should cast substantial 3 November 20, 2018 Page 4 of 9 doubt on the accuracy of the background concentrations. The statistical background analysis may be skewed toward higher"natural"background conditions if contaminants associated With CCRs were to escape the landfill and enter the groundwater system (e.g., due to a liner breach, deposition of fugitive dust outside the landfill, or by ash-laden stormwater runoff during deposition of CCRs in the landfill) during the proposed "background" monitoring period. The Colon Report indicated monitoring should include a statistically representative number of sampling events prior to the placement of any wastes in the facility. B. Groundwater Monitoring Issues: The Brickhaven Report indicated that while groundwater detection monitoring conducted since CCRs were first placed in the landfill failed to provide definitive evidence of releases from the landfill, noted increases in some constituents, particularly boron, calcium, sulfate, and lithium at well MW2 indicated some impact to the groundwater system associated with the landfill. The Brickhaven Report also found that close review of future detection monitoring events is essential to determine whether contaminants are being released or if variations in constituent concentrations are natural. The Brickhaven Report concluded the groundwater detection monitoring system was inadequate to monitor for possible impacts to the groundwater system associated with the landfill. The Brickhaven Report recommended additional monitoring wells. These wells would be installed and implemented within the landfill area to characterize the head and water quality directly beneath the landfill. In order to properly install these additional necessary monitoring wells,the landfill liner would need to be penetrated. Proper sealing of the liner would be required around the monitoring well to prevent contaminant migration down the well bore through the liner breech. The Brickhaven Report recommended additional monitoring wells be installed to properly evaluate deeper parts of the groundwater flow system beneath and surrounding the landfill. Importantly, and in order to properly ensure accurate monitoring, the Brickhaven Report states "investigations should be conducted to investigate diabase intrusions, faults, and other fracture systems that may serve as preferred groundwater flow pathways. If these features are identified within and/or adjacent to the landfill, we recommend that additional monitoring wells should be intentionally placed to monitor groundwater conditions associated with these features." The Brickhaven Report also disclosed that the surface water monitoring at SW1 (during July 2017) showed a substantial rise in concentrations of contaminants of concern, specifically TDS, arsenic, cobalt, lead, copper, and zinc. The Brickhaven Report specified that this increase in contaminant concentrations could be related to stormwater runoff and/or windblown ash leaving the Brickhaven facility. The Brickhaven Report found a closer scrutiny of CCR waste 4 November 20, 2018 Page 5 of 9 handling, as well as stormwater management practices at the Brickhaven facility, is needed to determine if the landfill facility is the source of contaminants entering the surface water system surrounding the facility. Further, a broader sampling of surface water, including background sampling points from adjacent drainage basins, is necessary to ascertain whether landfill operations are in fact impacting offsite surface water quality near the facility. The Colon Report also addressed errors in the site's proposed groundwater monitoring system and the intent to construct monitoring wells within 10 feet of well screen placed ... "into the upper portion of the shallow aquifer." GMA indicates the site's plan for single shallow monitoring wells at compliance monitoring stations would "only provide reasonable detection monitoring if contaminants that may enter the groundwater system beneath the landfill would only be expected to migrate horizontally at or below the water table surface."The Colon Report indicates this is not the case at the Colon landfill site because in those specific areas with a downward vertical hydraulic gradient, contaminants would be expected to "flow downward into deeper portions of the aquifer system before migrating laterally away from the landfill." These migrating contaminants could pass beneath the proposed shallow compliance monitoring wells without being detected and could then continue to migrate undetected toward regional discharge features. The Report states the best practice for ensuring proper'monitoring of groundwater would be the installation of both nested shallow and deeper wells at compliance monitoring stations after proper determination of depths and screen intervals of deeper monitoring wells based upon flow-net analyses, which would take into account groundwater flow paths in the vertical (cross-sectional)view. Installation and implementation of both shallow and deeper wells would provide more accurate monitoring at the Colon site. Thus, there is clearly inadequate groundwater and stormwater monitoring and detection criteria, produced by HDR, in both the Brickhaven and Colon permits, for which you should suspend the permits until they can be properly modified, and if not,revoked entirely. C. Improper Hydrogeologic Mapping and Representations: The Brickhaven Report indicated that in GMA's opinion, the groundwater flow predictions presented in the HDR monitoring reports were based upon the flawed representation of how groundwater flows. The Report contended that future consideration of groundwater flow velocity should not be based upon comparison of well pairs, but should instead be based upon measured hydraulic gradients from accurately contoured equipotential maps. Furthermore, the Brickhaven Report indicated that improved mapping of the equipotential surface would be needed going forward. 5 November 20, 2018 Page 6 of 9 This equipotential mapping should be based on measured head in wells and should not include inferred head values based upon topography because inferred head values, as were used in prior equipotential mapping,unduly influenced the groundwater flow trends represented in the maps. These inferred values prevented the proper characterization of groundwater flow direction, gradient, and groundwater flow velocity at the site. Likewise, the future equipotential surface maps must also be based solely on measured head values from the site. Further, the Brickhaven Report detailed mischaracterized groundwater flow patterns in the original study, saying its findings were "incorrect, meaningless, and demonstrated a lack of understanding of the fundamentals of groundwater flow." Specifically, the Brickhaven Report noted that according to the original study, water would have to flow uphill for the previous study's findings to be accurate. Because of the original study's mischaracterized groundwater flow patterns, the current monitoring well network was inadequate to provide enough detail of the equipotential surface to reliably and accurately represent groundwater flow conditions, and additional monitoring wells needed to be constructed until the equipotential surface could be fully and reliably characterized. The Brickhaven Report further indicated that any future groundwater flow evaluations conducted should also address vertical groundwater flow trends, including depictions of the equipotential lines on cross sections. Without additional, reliable three-dimensional characterization of the groundwater flow system,the Brickhaven Report found it would be impossible to understand the nature of future changes in groundwater quality revealed from the detection monitoring program. Again, there is clear evidence of inadequate and/or incorrect information that is part of the current permits for which revocation is the proper remedy. The Colon Report also addressed the mischaracterization of groundwater flow patterns and the failure to properly characterize the hydrogeologic conditions of the Colon site. The Report indicated that such characterization would require, among other things, a detailed evaluation of the occurrence, and potential occurrence, of faults, major joints, and diabase dikes and sills that may occur at the site. In order to accurately make this characterization, detailed field mapping, fracture traces analysis of native topography, and geophysical investigations would be necessary. This permit work is clearly inadequate. As no CCRs have ever been sent to this site,this permit should be revoked until, and only if, a proper permit is submitted to DEMLR and DWM. Specifically, the Colon Report states the "Design Hydrogeologic Report lacks any mapping of time-contemporaneous water-level data which would represent an accurate depiction of the equipotential surface of the water table." Instead, the Design Hydrogeologic Report presents a "Seasonal High — Shallow and Intermediate Groundwater Potentiometric Map" to illustrate the estimated groundwater flow direction and gradient.The Colon Report specifies that 6 November 20,2018 Page 7 of 9 this map is an unconventional mix of maximum groundwater elevation values measured in wells spanning a five(5)month period from July to December of 2014. The Colon Report further offers that such non-contemporaneous elevation values were erroneously contoured by an AUTOCAD interpolation process utilizing linear triangulation. As a result of the incorrectly contoured elevation values, some of the illustrated contour lines came to severe points, with angles as sharp as forty (40) degrees. These contour patterns are both unrealistic and unnatural. In GMA's opinion, the map "is not a representative depiction of the groundwater flow, nor of the seasonal high-water table, at the Colon facility...This map is based upon non-contemporaneous water levels collected in the summer and fall of 2014." Because the permit continues in operation with such glaring data gaps of fundamental and necessary permit conditions, the permits should be immediately revoked. Inappropriate Extension of the Permit to Authorize Landfill Use of Non-Excavated Areas The issuance of the two (2)modified mining permits, under N.C. Gen. Stat. § 74, Article 7 of the Mining Act of 1971, to Green Meadow, LLC ("Green Meadow") and Charah, Inc. ("Charah")was done so in error and in violation of North Carolina law. At the hearing before Administrative Law Judge, Melissa Owens Lassiter, Tracy Davis, a licensed Professional Engineer and the Director of DEMLR, testified about the issuance of the two (2) modified mining permits. In his testimony, he opined that reclamation of an open pit mine is a reasonable rehabilitation of an affected land for useful purposes. However, Davis failed to give a professional opinion, or even address, whether the planned mine reclamation could occur on portions of the sites that had never been mined. Despite Davis' testimony that the Colon mine was only 38% excavated, and that the mining permit modification proposed by Green Meadow and Charah would retain the same mining footprint as its' predecessor's, he indicated that Green Meadow was already "excavating the same depth basically as the existing pits and ponds that were out there." (T. pp. 176-177) In other words, Green Meadow was expanding the mine's footprint, and creating an excavation or open pit to place the lined cells that were proposed for structural fill. According to N.C. Gen. Stat. § 74-49(7)(d) "mining" is a defined term that does not include "[excavation] or grading when conducted solelyfor on-site construction for purposes other than mining." It is clear that at no point was there any showing that Green Meadow or Charah had any plans to continue to mine the site for clay or shale for the purpose of marketing and selling the minerals from the site. Instead, the sole purpose for excavation outside of the already established mining footprint was two-fold. First, they intended to excavate beyond the footprint solely for purpose of freeing additional, on-site disposal of coal ash. Likewise, Green Meadow and Charah's intention for excavation was merely for the"on-site construction for 7 November 20, 2018 Page 8 of 9 purposes other than mining." As evidenced by Davis' testimony, Green Meadow was only stockpiling the material on the site for use in constructing liners and,possibly, cover. As a result of such clear omissions in the review, DEMLR substantially prejudiced the rights of BREDL and the adjoining property owners around the sites. DEMLR also exceeded their authority, acted erroneously, and failed to utilize the procedural processes for drafting and issuing the modified mining permits to Green Meadow for both the Colon Road and Brickhaven sites. The errors allowed for coal as to be used for mine reclamation in the areas of the two sites which were not previously mined, or otherwise excavated. It is proper for DEQ to correct the errors and omissions by revoking the permits. Insufficient Control of Current and Future Stormwater Runoff Although scientists are uncertain whether climate change will lead to an increase in the number of hurricanes, warmer ocean temperatures and higher sea levels are expected to intensify their impacts. For the continental United States in the Atlantic Basin, models project a 45-87 percent increase in the frequency of Category 4 and 5 hurricanes despite a possible decrease in the frequency of storms. Warmer sea surface temperatures could mean more precipitation. Rainfall rates during these storms are projected to increase by about 20 percent. These "projections" have already begun to be confirmed since operations began at the Brickhaven facility. Hurricane Harvey (2017) was characterized as a 500-year rain event, and Hurricane Florence (2018) was described as a 1000-year rain event. Both events exceeded stormwater management plans for the facility, and may also be indicative of the new normal for which additional safeguards are needed. As previously noted, the Brickhaven Report showed increases in some constituents (e.g. boron, calcium, sulfate, and lithium), which appear to indicate impact to both the ground and surface water systems associated with the landfill. The Brickhaven Report specified the increase in contaminant concentrations could be related to stormwater runoff and/or windblown ash leaving the Brickhaven facility and found a closer examination of CCR waste handling, as well as stormwater management from the Brickhaven facility, would be needed to better ascertain if the landfill facility is the source of contaminants entering the surface water system suriounding the facility. The findings of the Brickhaven Report, coupled with the increased prevalence precipitation and of Category 4 and 5 hurricanes, and other substantial weather events, with considerable increases in associated precipitation, lead to the necessity of requesting,that an updated environmental study be undertaken at the sites. New investigations must be conducted to not only determine how CCR is handled,but also to determine if the best management practices 8 November 20,2018 Page 9 of 9 are currently in place or whether additional steps should be taken to safeguard the health and well-being of the individuals surrounding the facilities, and on their families, including the use and enjoyment of their property, the value of their property, and other economic interests. Conclusion We request that the Secretary re-open and re-review the permits immediately so that the appropriate action(s) may be taken. We urge your immediate attention as the allowance for dangerous constituents to go undetected, as well as additional significant and adverse impacts on the health and well-being of the individuals surrounding the facilities, will remain a very tangible threat. We believe DEQ should revoke the permits based on these issues, problems, and data gaps. Revision or reissuance of these permits should only be done if DEQ is satisfied that the permit conditions are correct, based on sound science and data, and will, in fact, be protective of public health and the environment. We appreciate your prompt attention and response to this important request. Please do not hesitate to call our office if you wish to discuss any of this further or have other questions or concerns. Sincerely, sea. e. Seth E. Barefoot Cc: Ed Mussler,Permitting Branch Supervisor State of North Carolina Department of Environmental Quality Waste Management Toby Vinson,PE,CPM,Interim Director State of North Carolina Department of Environmental Quality Land Resources Michael Scott,Deputy Director State of North Carolina Department of Environmental Quality Waste Management 9