Author: Sue Sturgis

With the Environmental Protection Agency expected to release its proposed regulations for power plant coal ash any day now, there is an intense behind-the-scenes lobbying effort by industry interests hoping to keep the waste from being declared hazardous and thus subject to the strictest federal oversight.

President Obama’s regulatory czar, Cass Sunstein of the White House Office of Management and Budget, has reportedly held some 20 meetings with industry groups since October to discuss the potential impact of proposed EPA rules to treat coal ash as hazardous waste. A byproduct of burning coal for electricity, coal ash contains toxins including heavy metals that have a track record of making their way from the ash into groundwater and surface water supplies — which is why environmental advocates have long called for regulating it like other hazardous waste.

But it isn’t only industry insiders who are pressing for the regulatory status quo when it comes to coal ash: They’re getting help from U.S. lawmakers — in some cases lawmakers from states that have suffered documented environmental damage from loosely regulated ash dumping.

Late last month, 27 Senators from both major political parties sent a letter [pdf] to the President opposing re-classification of coal ash as hazardous waste. That followed a bipartisan letter [pdf] sent to EPA Administrator Lisa Jackson last June by 25 Senators and another letter [pdf] sent to Jackson that same month by 74 members of the House of Representatives raising the same concerns: that a hazardous designation would put an end to the recycling of coal ash, interfere with its so-called “beneficial uses” like structural and mine fill, and lead to “unnecessarily high costs” for utilities and consumers. All three of the letters point to a 2000 determination by the Clinton EPA that coal ash should not be managed as hazardous.

The 2000 EPA determination was also cited by dozens of other letters opposing the hazardous designation for coal ash that have been sent to the Obama administration by numerous state agencies — from the Arkansas Department of Environmental Quality to the Florida Department of Transportation to the North Carolina Public Utility Commission. In its own March 2009 letter [pdf] to the EPA, the American Coal Ash Association — the lobbying group for coal ash producers and users — also pointed to the 2000 determination in making its arguments against classifying coal ash as hazardous waste.

However, the ACAA and its government allies fail to mention that the EPA has released additional information since 2000 that calls into question the effectiveness of the current regulatory system.

On July 9, 2007, EPA’s Office of Solid Waste published a report titled “Coal Combustion Damage Case Assessments” [pdf] documenting 24 cases of proven environmental damage and 43 cases of potential damage caused by current coal ash disposal practices nationwide. As it turns out, many of those damage cases are in the home states of Congress members opposing strict coal ash regulations.

Facing South compiled the following list of the signers of the House and Senate letters from states with EPA-documented coal ash damage cases. It is arranged alphabetically by state, followed by the number of the state’s damage cases and the Senators and/or Representatives who signed letters opposed to classifying coal ash as hazardous waste:

* ALABAMA – 2 damage cases – Rep. Parker Griffith-R.
* GEORGIA – 1 damage case – Sens. Saxby Chambliss-R, Johnny Isakson-R.
* ILLINOIS –  8 damage cases – Rep. John Shimkus-R.
* INDIANA – 7 damage cases – Sen. Evan Bayh-D; Reps. Steve Buyer-R, Andre Carson-D, Brad Ellsworth-D, Baron Hill-D, Mark Souder-R, Peter Visclosky-D.
* KENTUCKY – 1 damage case – Sen. Jim Bunning-R; Reps. Harold Rogers-R, Ed Whitfield-R.
* MARYLAND – 1 damage case – Sen. Barbara Mikulski-D; Rep. Roscoe Bartlett-R.
* MINNESOTA – 1 damage case – Sen. Amy Klobuchar-D; Reps. Michele Bachmann-R, John Kline-R, Erik Paulsen-R.
* MONTANA – 1 damage case – Sen. Jon Tester-D; Rep. Denny Rehberg-R.
* NORTH CAROLINA – 3 damage cases – Sen. Richard Burr-R; Reps. Howard Coble-R, Walter Jones-R, Patrick McHenry-R, Sue Myrick-R.
* NORTH DAKOTA – 3 damage cases – Sens. Kent Conrad-D, Byron Dorgan-D; Rep. Earl Pomeroy-D.
* OHIO – 3 damage cases – Sen. George Voinovich-R; Reps. Steve Austria-R, Steve Driehaus-D, Jim Jordan-R, Robert Latta-R, Steven LaTourette-R, Tim Ryan-D, Jean Schmidt-R, Zachary T. Space-D, Charles A. Wilson-D.
* PENNSYLVANIA – 1 damage case – Reps. Jason Altmire-D, Christopher Carney-D, Charles Dent-R, Michael Doyle-D, Jim Gerlach-R, Tim Holden-D, Tim Murphy-R, John Murtha-D, Joseph Pitts-R, Bill Shuster-R, Glenn Thompson-R.
* SOUTH CAROLINA – 2 damage cases – Sen. Lindsey Graham-R; Reps. J. Gresham Barrett-R, Henry Brown-R, Joe Wilson-R.
* TENNESSEE – 2 damage cases – Sens. Lamar Alexander-R, Bob Corker-R.
* TEXAS – 3 damage cases – Sen. John Cornyn-R; Reps. Henry Cuellar-D, Louie Gohmert-R, Gene Green-D,  Ralph Hall-R, Mac Thornberry-R.
* VIRGINIA – 2 damage cases – Sens. Mark Warner-D, Jim Webb-D; Reps. Rick Boucher-D, Bob Goodlatte-R.
* WISCONSIN – 11 damage cases – Reps. Tammy Baldwin-D, Ron Kind-D, Thomas Petri-R, James Sensenbrenner-R.
* WYOMING – 1 damage case – Sens. John Barrasso-R, Michael Enzi-R; Rep. Cynthia Lummis-R.

That puts at 53 the total number of EPA-documented coal ash damage cases in states represented by members of Congress who signed letters opposing stricter coal-ash regulations. That there have been so many damage cases under the current regulatory system raises questions about the letters’ claims that the state regulatory agencies which now oversee coal ash are doing an effective job.

Among the proven coal-ash damage cases documented in EPA’s 2007 assessment:

* In 2002, a sinkhole developed in the coal ash pond at Southern Company-owned Georgia Power’s Plant Bowen near Cartersville, Ga. Eventually spreading four acres wide and 30 feet deep, the sinkhole led to the spill of an estimated 2.25 million gallons of a coal ash and water mixture into the nearby Euharlee Creek.

* Runoff from a fly ash pond at Duke Energy’s Belews Creek Steam Station in North Carolina contaminated nearby Belews Lake, which experts have called “one of the most extensive and prolonged cases of selenium poisoning of freshwater fish in the United States.”

* At South Carolina Electric & Gas Canadys Plant along the Edisto River south of St. George, S.C., arsenic consistently has been found in monitoring wells at levels about drinking water standards, while nickel has also been detected on occasion above state standards. Both of those metals are known to cause cancer in humans.

* Residential wells near a coal ash disposal site for Virginia Power’s Yorktown plant, now owned by Dominion, were found to be contaminated with selenium and vanadium, with selenium levels exceeding drinking water standards. Further investigation found heavy metal contamination in nearby Chisman Creek and its tributaries, with elevated levels of known carcinogens including arsenic, beryllium and chromium.

* Selenium poisoning of fish caused by runoff from coal ash ponds was also documented at reservoirs near Southwestern Power’s Pirkey plant and its Welsh plant in Texas, as well as near Texas Utilities’ Martin Lake plant.

Meanwhile, EPA’s 2007 damage assessment does not take into account more recent cases of documented damages from coal ash. Last year, for example, scientists released an analysis documenting groundwater contamination from coal ash ponds at 13 coal-fired power plants across North Carolina. The assessment also does not account for the extensive damages related to the massive coal ash spill from the Tennessee Valley Authority’s Kingston plant in December 2008 — the disaster that spurred EPA to reconsider coal ash regulation.

And contamination from coal ash is not only a concern at power plants, as there is growing evidence that the use of coal ash as structural fill has also damaged the environment.

In North Carolina, for example, there have been at least two documented cases of groundwater contamination from structural fills using coal ash. In Pennsylvania, environmental advocates have documented numerous instances of contamination from the dumping of coal ash in abandoned mines. And in Virginia, lawsuits filed recently against Dominion Virginia Power, Combustion Products Management and others over a golf course built atop a coal ash fill allege that toxic contaminants from the ash have begun to leach into groundwater supplies used as drinking water for nearby Chesapeake neighborhoods.

But nowhere do the Congressional letters urging against stronger coal ash regulation take these damages into account. Apparently their signers think the current system is working just fine, despite the evidence to the contrary.

A 1,500-year-old sacred Indian mound in Oxford, Ala. has apparently been destroyed to make way for a new municipal sports complex. The site in question is near another Indian mound in Oxford that was threatened last year by construction of a Sam’s Club warehouse store.

Harry Holstein, a professor of archaeology and anthropology at Alabama’s Jacksonville State University who specializes in prehistoric stone structure sites, told the Anniston Star newspaper that the ruined site — which contained remnants of an Indian village and the base of a temple mound that may have held human remains — has vanished:

When Holstein visited the site last summer, it was still intact.

But when he returned to the area Monday, he could find no sign of the mound or the village remnants.

The land is now flat, with tire tread marks clearly visible in the dirt.

“It’s been flattened like a pancake,” Holstein said. “There is just grass over it now.”

Holstein was part of a team of JSU researchers who prepared a report for the city before construction began that found the property slated for development contained some of the most significant archaeological sites in northeast Alabama. The report called for their preservation, which city leaders agreed to.

Holstein believes the structures that were at the destroyed site were related to the stone mound on a hill behind an Oxford shopping center. Last year, contractors hired by the city’s Commercial Development Authority were using dirt from that mound as fill for construction of a Sam’s Club, part of a chain operated by Arkansas-based Walmart. Following public outcry, the contractors halted that work and switched to fill dirt provided by a private landowner.

The sites are among several ancient
stone and earthen mounds located throughout Alabama’s Choccolocco Valley.

Fred Denney, the Oxford official in charge of managing the sports complex development project, denied that the city had any role in destroying the Indian site:

“No, we’re not touching the mound out there,” Denney said Monday. “We did have some ribbon and stakes of where to go … to show we’re not going any further than this.”

Denney said the same thing when interviewed about the site in August. No markers were visible when a reporter visited the site on Monday.

After Holstein surveyed the area, he said he could not find any stakes or markers or any signs of the American Indian site.

There is a long history of sacred American Indian sites being destroyed for commercial developments including Walmart stores and sports facilities. In the late 1990s, for example, an Indian burial site along the Cumberland River in Nashville, Tenn. was disturbed by construction of a stadium for the Tennessee Titans National Football League team.

The Woodland and Mississippian cultures that inhabited the Southeast and Midwest before Europeans settled in the Americas constructed the mounds for rituals, including burials. Native Americans consider the structures “prayer in stone.”

Bracing for a possible surge of Haitian refugees fleeing their earthquake-ravaged country, U.S. officials are taking steps to prepare for their arrival — but some of their actions are raising concerns among immigrants’ rights advocates.

The Department of Homeland Security has plans to move more than 400 detainees from Krome detention center (pictured right) west of Miami to make room for any influx of people from Haiti, the Miami Herald reports. Known formally as the Krome Service Processing Center, the federal Immigration and Customs Enforcement facility located on the edge of the Everglades holds up to 500 people waiting to learn their immigration status or to be deported. Some 100 of the detainees who were transferred went to the Monroe County jail in the Florida Keys, a move that a local newspaper described as a possible “boon for Monroe County coffers.”

But some are questioning the decision to move those already at Krome. Cheryl Little, director of the Florida Immigrant Advocacy Center in Miami, expressed concern for how the transfers would affect the detainees’ legal representation. Her nonprofit organization provides legal assistance to immigrants of all nationalities.

The plan to ready Krome for fleeing earthquake survivors came on the heels of last week’s news that the Obama administration was granting Temporary Protected Status to Haitians already living in the U.S. when the earthquake struck on Jan. 12. They join the other TPS-covered immigrants from Honduras, Nicaragua, El Salvador, Somalia and Sudan.

The special status gives undocumented Haitians an 18-month reprieve from deportation. It will also allow them to work legally in the U.S., earning money that will likely prove an important source of support for their devastated homeland. Even before the earthquake struck, remittances from Haitians living abroad accounted for more than a quarter of the country’s gross domestic product.

Administration officials say they expect as many as 200,000 Haitians will apply for TPS, including nearly 68,000 in South Florida alone. They would join an already-thriving Haitian-American community in Florida, the state with the greatest number of Haitian-born residents — more than 182,000 according to the last Census count.

Immigrants rights groups including Little’s have been asking the U.S. to grant TPS to Haitians since 2008, when four major hurricanes devastated the country, killing some 800 people. That disaster came four years after massive flooding left some 5,000 Haitians dead or missing.

The Bush administration denied the request for TPS, and the U.S. continued deporting Haitians under Obama, though focusing more on those with criminal records. Last year, 221 noncriminal Haitians were deported to Haiti, down from 1,226 the previous year, according to ICE statistics. Meanwhile, deportations of Haitians with criminal records totaled 466 in 2009, compared to 428 in 2008.

But in announcing the Obama administration’s decision to grant TPS status after the earthquake, DHS Secretary Janet Napolitano took pains to make clear that the U.S. was not welcoming Haitians with open arms. She warned Haitians that “attempting to leave Haiti now will only bring more hardship to the Haitian people and nation.” DHS and the State Department are making special allowances for orphaned children who are being adopted or considered for adoption by U.S. citizens, however.

Meanwhile, a U.S. Air Force cargo plane equipped with radio transmitters has been flying over Haiti daily since the disaster, broadcasting a recorded message from Raymond Joseph, Haiti’s ambassador to the United States, according to the New York Times:

“Listen, don’t rush on boats to leave the country,” Mr. Joseph says in Creole, according to a transcript released by the Pentagon. “If you do that, we’ll all have even worse problems. Because, I’ll be honest with you: If you think you will reach the U.S. and all the doors will be wide open to you, that’s not at all the case. And they will intercept you right on the water and send you back home where you came from.”

And Krome isn’t the only facility being looking at for housing Haitian refugees: Speaking about the earthquake response last week, State Department spokesperson P.J. Crowley said the U.S. Guantanamo Bay Naval Station in Cuba is “going to be an enormously valuable asset as we go through this.”

Notorious as the scene of human rights abuses of prisoners captured by the U.S. in the Afghanistan war, Guantanamo was also the point that more than 30,000 Haitian refugees passed through in 1991 following the military coup overthrowing Jean-Bertrand Aristide, Haiti’s first democratically elected president.

Guantanamo houses the Migrant Operations Center for immigrants caught at sea without proper U.S. documents. That facility is operated under contract with DHS by the Boca Raton, Fla.-based GEO Group, one of the world’s largest private prison companies. The GEO Group has experienced serious problems at a detention facility it runs in Pecos, Texas — among them riots, suicides and deaths from inadequate health care.

(Photo of Krome detention center from the DHS website.)

With the eyes of the world on the catastrophe in earthquake-stricken Haiti, U.S. Vice President Joe Biden traveled to the site of a domestic disaster last week, unveiling a program offering financial assistance to Gulf Coast communities devastated by hurricanes Katrina and Rita in 2005.

Speaking at New Orleans’ St. Bernard Community Center on Friday, Biden announced a plan to allow local governments in Louisiana and Mississippi that received Special Community Disaster Loans (CDLs) following the storms to apply for loan forgiveness.

“This Administration continues to be deeply committed to do everything in our power to help New Orleans and the entire Gulf Coast not only restore their storied past, but build a better future,” Biden said. “Today’s loan forgiveness announcement is just another example of our common-sense approach to rebuilding in the region — we’re removing unnecessary bureaucratic hurdles and providing faster turnaround on assistance.”

In the wake of the 2005 hurricanes, the Federal Emergency Management Agency provided over $1.27 billion in Special CDLs, enabling cash-strapped local governments to continue providing essential services. But in authorizing the program, Congress prohibited FEMA from forgiving any of the loans.

The new regulation strikes that prohibition, allowing municipalities that experienced operating deficits during the three fiscal years following the storms to apply for forgiveness.

U.S. Sen. David Vitter (D-La.), a longtime advocate of loan forgiveness for hurricane-stricken Gulf communities, raised concerns about the three-year deficit requirement, since some local governments aren’t allowed to have operating deficits by law. But in his New Orleans speech, the Vice President seemed to downplay the deficit requirement, the Times-Picayune reports:

… Biden, although guided by teleprompters, seemed to brush that aside in a conversational passage in his remarks: “I advise you to apply quickly, because when you apply you going to get the right answer…. You’re going to get your money,” he said to sustained applause.

The City of New Orleans, where much of the Katrina-related destruction was caused by failed federal levees, borrowed $240 million from the feds in Special CDLs, while other local agencies including the Sewerage & Water Board and the Orleans School Board got another $218 million, according to figures from the office of U.S. Sen. Mary Landrieu (D-La.).

New Orleans used the last $10 million of its federal loan to finance operations this year. The city’s director of intergovernmental affairs, Julie Schwam Harris, told the Times-Picayune that “loan forgiveness will mean the city can wipe nearly a quarter of a billion dollars in debt off its books, improving its bond rating and potentially making it easier and cheaper to borrow capital.”

Following his trip to Louisiana, which also included a stop in a part of southwestern Louisiana hit hard by Hurricane Rita, Biden headed to Miami’s Little Haiti community to meet with Haitian-American leaders about the earthquake recovery effort, which he said would be a “long slog.”

The proximity of the Vice President’s Gulf Coast announcement to the Haitian disaster was coincidental, as Biden’s Louisiana trip was planned before the earthquake hit. But loan forgiveness has long been a pressing issue for the Haitian people, too.

Last year two-thirds of Haiti’s international debt — a total of $1.2 billion — was canceled after the country agreed to make a number of reforms. But that still left Haiti with about $641 million in debt, with about half owed to the International Monetary Fund and the InterAmerican Development Bank and the rest to lender countries including Taiwan and Venezuela. This year, Haiti owes about $10 million in debt payments to the IMF and IDB alone.

But last week’s massive earthquake centered near the Haitian capital of Port-au-Prince has led to calls for the U.S. to use its influence to encourage creditors to cancel Haiti’s debt so all of the impoverished nation’s limited resources could be directed toward recovery.

Debt-relief advocates also say that earthquake assistance for Haiti should be given in the form of grants — not additional loans like the $100 million emergency financing that’s been offered by the IMF.

Answering the call of human-rights advocates, the Obama administration granted temporary protected status to Haitian nationals living in the United States as of Jan. 12.

Department of Homeland Security Secretary Janet Napolitano made the announcement this afternoon:

This is a disaster of historic proportions and this designation will allow eligible Haitian nationals in the United States to continue living and working in our country for the next 18 months. Providing a temporary refuge for Haitian nationals who are currently in the United States and whose personal safety would be endangered by returning to Haiti is part of this Administration’s continuing efforts to support Haiti’s recovery.

TPS will protect Haitians from deportation for 18 months and allow them to work legally in the United States. Even before this week’s disaster, remittances from Haitians living abroad accounted for more than a quarter of the gross domestic product of Haiti, the Western Hemisphere’s poorest nation.

Administration officials told the New York Times that the special status would cover at least 100,000 Haitians believed to be in the United States illegally, along with about 30,000 Haitians who have been ordered deported. The U.S. government already grants TPS to people from El Salvador, Honduras, Nicaragua and the Sudan.

“We are thrilled that at long last deserving Haitians will be getting TPS,” said Cheryl Little, executive director of the Florida Immigrant Advocacy Center. “We hope this will provide some comfort to Haitians here who are suffering in the aftermath of the devastating earthquake.”

Environmental advocates were disappointed last month when Environmental Protection Agency Administrator Lisa Jackson announced that her agency would miss the promised end-of-the-year deadline to release a proposed regulation of coal ash.

She blamed the delay on “the complexity of the analysis” — but new details are emerging about the intense lobbying campaign the utility industry is engaged in to protect its financial interests.

The Wall Street Journal reported this past weekend on what it called a “flurry of industry meetings” held within the White House in an effort to fight back against regulations that would create logistical problems and potentially limit so-called “beneficial” uses of coal ash:

The office of President Barack Obama’s regulatory czar, Cass Sunstein, has held nearly 20 meetings with industry groups since October to discuss the potential impact of proposed EPA rules to treat coal ash and other coal byproducts as hazardous waste, according to White House records. Mr. Sunstein directs the Office of Information and Regulatory Affairs within the White House Office of Management and Budget.

Watchdog groups say it is unusual for the OMB to insert itself so prominently, and so early, into the process. In this case, the EPA has yet to publish its proposed new regulations for coal ash, a step that would then open the door to public comment and hearings.

Utility executives are concerned that new rules designating coal ash as hazardous waste could add billions of dollars in new costs, as companies would be required to find safer ways to store the material than dangerous surface impoundments like the one that collapsed at the Tennessee Valley Authority’s Kingston coal plant in eastern Tennessee a little over a year ago — a disaster that put coal ash regulation on the national agenda.

Besides presenting a physical hazard to communities because of the way it’s stored, coal ash contains toxic metals including arsenic as well as radioactive elements and cancer-causing combustion byproducts that can leach out of impoundments and landfills and contaminate water supplies. A 2007 EPA report documented dozens of places nationwide where environmental damage from coal ash has been proven and identified scores of other potential damage cases.

It’s not only the way that utilities store coal ash that’s at stake in the rule-making. Should the new regulation broadly define coal ash as hazardous waste, it could put a crimp in utilities’ efforts to promote so-called “beneficial uses” of the material in consumer products like wallboard, as structural fill for construction projects and as a soil amendment for farm crops — all uses that are currently permitted and even encouraged under federal law.

Of the 131 million tons of coal combustion waste generated by U.S. utilities in 2007, about 40% went toward so-called “beneficial uses” and the rest into surface impoundments and landfills, according to a recent report by the Government Accountability Office.

There is currently no federal standard regulating storage and use of coal ash. Depending on how far-reaching the proposed rule is, a spokesperson for the industry group Electric Power Research Institute told the Wall Street Journal, as many as 250 to 350 coal units could be shut down. However, environmentalists say such dramatic claims are scare tactics aimed at discouraging the Obama administration from taking needed steps to protect the public.

(Aerial photo of Kingston coal ash spill from SkyTruth.)

A federal judge threw out a lawsuit last week that Mississippi social-justice groups brought against the U.S. Department of Housing and Urban Development for allowing the diversion of $570 million in Hurricane Katrina housing funds to expand the state port at Gulfport, Miss.

On Friday, U.S. District Judge James Robertson dismissed the case filed in December 2008 because the plaintiffs were not personally affected, WLOX News reports.

The suit was brought by the Mississippi Center for Justice, the Lawyers’ Committee for Civil Rights Under Law and the law firm Mintz Levin Cohn Ferris Glovsky and Popeo on behalf of the Mississippi NAACP, Gulf Coast Fair Housing Center and several individual residents. It charged HUD with violating the requirements of the Community Development Block Grant program, which provided the funds.

Responding to last week’s decision, Mississippi Center for Justice Attorney Reilly Morse says the plaintiffs may appeal or take other action in federal district court.

“We believe that the Judge failed to recognize the legally proper personal stake these plaintiffs — individuals whose homes are still in shambles and organizations who stand up for those individuals — have in the proper oversight of post-Katrina relief money appropriated by Congress,” Morse told WLOX.

The plaintiffs charged HUD with abdicating its oversight role by failing to prioritize the housing needs of low- and moderate-income families. HUD began releasing the housing funds to the port last year.

Katrina decimated the availability of affordable housing stock — particularly rentals — along the hard-hit Mississippi coast. Advocates argued that the diversion of funds would have a particularly detrimental effect on African Americans in the region, who are disproportionately more likely to live in poverty and to rent rather than own their homes.

The Mississippi Development Authority, a state agency charged with recruiting and retaining businesses, was behind the plan to divert the funds. MDA officials and Gov. Haley Barbour (R) argued that sending housing money to the port would create jobs and improve the quality of life for Mississippi Gulf Coast residents.