Defenders of Wildlife, Sierra Club, Chesapeake Climate Action Network, and Patuxent Riverkeeper claim the Mirant companies are violating the Clean Water Act by failing to comply with the terms of the discharge permit at the Brandywine Coal Combustion Waste Landfill in Brandywine, Maryland.
Pointing to a March 2009 report from the U.S. Environmental Protection Agency which established that disposal of coal combustion waste in unlined landfills and surface impoundments is hazardous to human health, the groups say the waste discharges pose unacceptably high risks of cancer and diseases of the heart, lung, liver, stomach, an other organs.
The Brandywine Coal Combustion Waste Landfill receives fly ash and bottom ash from Mirant's coal-fired Chalk Point Power Plant, the largest power plant in Maryland.
Mirant says the 40-year-old plant is ISO 14001:2004 certified, which means it meets a widely accepted international standard for environmentally responsible operation. The plant uses electrostatic precipitators designed to remove 98 percent of fly ash during start up and 99.2 percent during normal operation.
It is not the operation of the Chalk Point Power Plant that the groups are taking issue with - they are concerned about the operation of the landfill where the plant's waste ash ends up.
Mataponi Creek as it flows through the Merkle Wildlife Sanctuary (Photo by Chesapeake Bay Program)
The groups claim the Mirant companies are illegally discharging toxic pollutants into Mataponi Creek and its tributaries from outfalls and through leaks in disposal cells at the landfill.
They are particularly concerned because Mataponi Creek flows through Merkle Wildlife Sanctuary, the only sanctuary operated by the Maryland Department of Natural Resources. It is the wintering ground for several thousand Canada geese, the largest concentration on the western shore of the Chesapeake Bay. Red fox, groundhogs and white-tailed deer, ospreys, herons, hummingbirds, and songbirds also inhabit the refuge.
The waste can poison nearby aquatic ecosystems and wildlife with bioaccumulative poisons that can continue for more than 100 years after waste is dumped, according to the EPA report.
"Selenium and other toxic coal combustion waste pollutants accumulate in animal tissues, threatening a wide range of wildlife from rockfish to ospreys to bald eagles, causing serious respiratory, metabolic, hormonal and physiological damage, or even death," said Adam Kron, staff attorney for Defenders of Wildlife. "Mirant must take full responsibility for its landfill in order to prevent such harms to Maryland's waters and wildlife."
The Brandywine CCW Landfill contains seven million cubic yards of coal combustion waste in multiple, unlined disposal cells. Only the most recent disposal cell, which began operation in 2007, has a liner.
Mirant also has failed to submit a required report that describes how the company will eliminate all toxic discharges at the Brandywine landfill.
The Maryland Department of the Environment has documented cadmium, manganese, iron, aluminum, sulfates, and total dissolved solids many times over drinking water standards in groundwater beneath the site. The groups claim that Mirant routinely discharges selenium above Maryland's toxic water quality criteria for aquatic life.
Patuxent Riverkeeper Fred Tutman said, "Unsafe management of coal waste at the Brandywine landfill poses a threat to the long term health of our constituents, and also to the value of the river as a place for renewal, sustenance, research and investment."
According to EPA, unlined landfills and surface impoundments can leach toxic pollutants like selenium, lead, arsenic, and boron at levels that damage aquatic ecosystems and wildlife. Toxic metals can be embedded in the sediment at the bottom of rivers and lakes, where they can be very difficult to remove, and poison bottom-dwelling plants and fish.
"From cradle to grave, pollution from coal is impacting Maryland's vulnerable landscape and sensitive areas. It's time to send a clear message to Mirant that polluting our communities is not acceptable," says Diana Dascalu-Joffe, staff attorney for the Chesapeake Climate Action Network.
Mirant is also the target of an enforcement action by the State of Maryland for Clean Water Act violations at its Faulkner Coal Combustion Waste Landfill due to groundwater contamination.
The Environmental Integrity Project and the Environmental Law Clinic at the University of Maryland School of Law are acting as co-counsel for the four groups.
Jane Barrett, director of the University of Maryland Environmental Law Clinic, said, "The citizen suit provision of the Clean Water Act is a critical enforcement tool which, in cases like this one, can be used to supplement federal and state actions by holding polluters accountable and protecting our valuable natural resources."
"The Brandywine landfill is just one of hundreds of dangerous ash dumps threatening human health and polluting water all across the country," said Mary Anne Hitt, deputy director of the Sierra Club's Beyond Coal Campaign said. "While we're doing our best to help clean up the worst offenders, EPA needs to set strong federal standards to safeguard communities everywhere."
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