Next Meeting: June 16th, 2009@ 6:30 p.m. Riverview Campground Activity Building
February 7, 2009
History and Status of the Cumberland Park Project
Giles County, Virginia
James A. McGrath, Chair
Concerned Citizens of Giles County
http://www.concernedgilescitizens.org/
1. Background
The Cumberland Park Project is designed to create a seven acre building site along Route 460 in Narrows, VA, which is in Giles County. The project will use structural fill material—a combination of compacted coal ash and soil—to create the foundation for the site. Over 250,000 cubic yards of fly ash is to be used to build up the site by thirty feet. The site is located on the 100-year flood plain of the New River, although the developers claim that a protective berm offers flood protection. See http://gilespartnership.org/current-projects.html for diagrams and a preliminary layout of the project site.
We argue that proper procedures were not followed in the approval process for this project. One result was that there was no public participation by the citizens of Giles County.
We also argue that there was a very strong conflict of interest by Howard Spencer, who served as both the Chairman of the Giles County Board of Supervisors and the executive director of the Giles County Partnership for Excellence (GCPE). The Cumberland Park Project was undertaken by American Electric Power (AEP) on the behalf of the GCPE, a not-for-profit school foundation. It should also be pointed out that Howard Spencer is also the town manager and town clerk of Glen Lyn where the AEP-owned coal-fired plant is located, and which is the major employer of his constituency.
Under state environmental regulations, this fill project avoided stricter permitting requirements otherwise required for hazardous waste sites because a “beneficial end use” was proposed. No impervious liner was required for the fill site to help prevent leaching and no monitoring was required. GCPE operates under the presumption that the coal combustion waste (CCW) can be utilized safely as a fill material, and that commercial enterprises would want to purchase the real estate on top of the fill site. GCPE has pledged the eventual net proceeds from the sale of the Cumberland Park Project to the Giles County Schools Vocational Education program. The Giles County School Board is required to assume oversight of the Foundation’s project at some point, but has had no involvement whatsoever thus far and has assumed no responsibility.
The Cumberland Park Project began with an agreement between the GCPE and AEP in April, 2006. Soon after the agreement was made, AEP began working with Draper Aden Associates to develop a fill design for their proposed CCW site. The GCPE agreed to purchase the land in Narrows and Schnabel Inc. was employed to perform geotechnical site inspections.
2. Environmental Concerns
Over 254,000 cubic yards of coal ash (or “coal combustion waste” – CCW) is being dumped close to the New River*. CCW contains lead, mercury, arsenic, cadmium, and a variety of other toxic heavy metals, including some radioactive elements. The heavy metals and toxins contained in the CCW have been known to leach out when rain, highway runoff, or other water comes in contact with such landfills.
The area in Giles County on which the CCW is being dumped is rife with underground streams, next to protected wetlands, and is subject to being undermined and washed out by periodic flooding of the river. It seems very likely that the flooding and percolation of water through the site will leach extremely toxic heavy metals into the river and groundwater, thus affecting wildlife and the local population.
In 2000 the EPA said, however, that coal fly ash did not need to be regulated as a hazardous waste. Studies by the U.S. Geological Survey and others have concluded that fly ash compares with common soils or rocks and should not be the source of alarm. A number of community and environmental organizations, however, have documented numerous environmental contamination and damage concerns. The U.S. Environmental Protection Agency (EPA) has noted two dozen cases of fly ash dumps contaminating wells and groundwater. There is evidence of heavy metals leaching into groundwater, for example, at the Battlefield Golf Club at Centerville (in Chesapeake,VA) which was contoured with more than a million tons of fly ash from Dominion Virginia Power.
A revised risk assessment approach may change the way CCW is regulated; according to an August 2007 EPA notice in the Federal Register. In June 2008, the U.S. House of Representatives held an oversight hearing on the Federal government’s role in addressing health and environmental risks of fly ash.
In December 2008 a coal fly ash retention pond at the Kingston Fossil Plant in Harriman, TN (owned by the Tennessee Valley Authority) failed, spilling about 5.4 million cubic yards of sludge laced with mercury, arsenic, and other toxins. The spill covered approximately 300 acres, damaging and/or destroying numerous homes, covering the land with a thick coat of sludge, and contaminating the Clinch and Emory Rivers (they both flow into the Tennessee River). It is considered one of the nation’s worst environmental spills. Less than a week later another site owned by TVA failed, spilling approximately 10,000 gallons of coal waste into Widows Creek in Stevenson, Alabama (about 30 miles southeast of Chattanooga, TN).
3. Legal Issues
A Due Diligence Report dated April 21, 2006 indicated that American Electric Power (AEP) contracted with Draper Aden Associates regarding the possible development for future commercial buildings at the Cumberland Park site. On August 4, 2006, AEP, upon the behalf of the GCPE, stated in the Loma/Clomr Report their intent to develop a fill-site, the Cumberland Park Project, for a future commercial development.
*Executive Order 13061 was signed by President William Clinton on September 11, 1997 designating the New River, in North Carolina, Virginia, and West Virginia, an American Heritage River.
On February 28, 2007, the U.S. Federal Emergency Management Agency (FEMA) sent a certified letter to Howard Spencer, the Chairman of the Giles Board of Supervisors. This letter was the validation of the plans set forth in the two earlier proposals and corresponded to the time at which federal regulations started to apply.
Proper procedure at this time should have been to move the FEMA certification for county review under County Ordinance 802.05 (rezoning) where the proposal for changing a Zone A Flood Plain using a structural fill to a commercial rezoning would have had review by the Planning Commission and Board of Supervisors with attendant public hearings. What was assumed instead was that the Virginia Department of Environmental Quality (DEQ) 9VAC 20-85 Regulation was in place and, therefore, this state regulation that did not require public participation took precedence over county ordinances.
This assumption was the result of a letter received by Virginia DEQ on February 27, 2007 from the Giles County Partnership for Excellence requesting a variance petition for the Cumberland Park site. This variance was needed to meet a condition of the regulations and is not part of normal processing of coal combustion by-product applications where public participation is not required.
The application for the Cumberland Park site was not received by DEQ until August 9, 2007, as stated in a letter from DEQ to Howard Spencer. The application on August 9, 2007 is further reinforced by a DEQ letter dated October 24, 2007 to Howard Spencer, executive director Giles County Partnership for Excellence certifying the Cumberland Park project satisfied all DEQ regulations.
The variance petition and the actual application are separate entities. FEMA certification was sent to Howard Spencer on February 28, 2007, while the application date for the Cumberland Park site was not received by DEQ until August 9, 2007, a period of more than 5 months. During these five months, marked in red in the timeline at the end of this report, the proper procedure would have been to follow guidelines for rezoning, including public hearings as stated in County Ordinance 802.05. Howard Spencer, as chairman of the Board of Supervisors, had the obligation to move the FEMA certification of the Cumberland Park site forward through ordinance 802.05 for county review.
Compounding the confusion of this improper procedure is a county document dated and signed August 17, 2007 by Giles County administrator Chris McKlarney which certified that the proposed location and operation of the commercial facility on the Cumberland Park fill site was consistent with all ordinances. It is not clear which ordinances are being referred to or why was this information not presented to the Planning Commission and the Board of Supervisors for review and public hearings.
4. Operation of the Cumberland Park Fill Site
Dumping was postponed from October 24, 2007, the date the Virginia Department of Environmental Quality certified the project as has having satisfied all regulations to demonstrate a beneficial end use, until March 26, 2008, when the first truckload of fly ash was dumped. Dumping was brought to a halt again on April 6, 2008, as a result of daily filming and monitoring of the site by the Concerned Citizens of Giles County (CCGC) which revealed a water drainage issue that led to costly re-engineering. In addition the CCGC’s continued vigilance of the site forced the project to construct east and west bound de-acceleration lanes on the main highway that was used by the trucks transporting fly ash to the site. These factors led to a postponement of further dumping until July 1, 2008 and contributed to hundreds of thousands of dollars in additional costs. Dumping of fly ash began again on July 1, 2008 and is continuing.
After a petition by the CCGC, a Giles County Special Grand Jury found in June 2008 that the Cumberland Park Project was not a public nuisance, and that no environmental damage had been done.
On December 4, 2008 the CCGC drilled water testing wells close to the fill site to detect leaching of contaminants into the groundwater. The possibility of such leaching was confirmed by a representative of AEP during a public meeting and contaminant leaching has occurred at other fly ash dumping sites throughout the country.
5. Future CCGC Plans
Fly ash dumps such as the one at Cumberland Park are, by their very nature, threats to the environment. A major issue of concern raised by the citizens of Giles County is that proper legal procedures were not observed and this enabled a major, environmentally threatening project to become operational within the county without any public input, comment, or participation.
CCGC will continue to monitor the Cumberland Park site and they will test the water from their own monitoring wells for groundwater contamination. If any leaching is detected, governmental regulatory agencies will be required to act. We also plan to examine county zoning ordinances which mandate public hearings for application procedures for amendments to any zoning text or zoning map (i.e., rezoning).
We contend that the receipt of the FEMA certification dated February 28, 2007 was the birth of the Cumberland Park Project. For a period of five (5) months from February 28, 2007 (FEMA letter) to August 9, 2007 (application date for the project) Howard Spencer as Chairman of Giles County Board of Supervisors had the professional responsibility to review the federal certification for the project. As the Chairman of Board of Supervisors he also should have submitted this to the Giles County Planning Commission and entire Board of Supervisors for review under county ordinance 802.05 (rezoning) – which would have required public hearings before the project began. If the project was presented to the public for review, as required by county ordinance, it is doubtful that the project would exist. As a guardian of the public trust, Howard Spencer had the ethical and moral duty to push this project to public review. As the Executive Director of the Giles County Partnership for Excellence, Mr. Spencer began working on this project in early 2006, but it was not brought to the attention of the public until August 1, 2007 via a newspaper article in the Virginian Leader (local Giles County paper).
We will consider further legal action to stop the dumping and ultimately remove all the fly ash from the flood plain on the banks of the New River. In addition, we will support more stringent environmental regulations for the disposal of CCW at the County, State, and Federal levels.
Cumberland Park Project Timeline
(Red line indicates when public participation should have occurred.)
Click to enlarge.
For more information, see the following sites:
Concerned Citizens of Giles County (In particular, see Research): http://www.concernedgilescitizens.org/
Giles Cumberland Park Project homepage: http://www.gilescumberlandparkproject.org/.
Description of fly ash and related issues, including links to EPA documents: http://en.wikipedia.org/wiki/Fly_ash
The VA Department of Environmental Quality Report on Project (includes map of site): http://concernedgilescitizens.org/wp-content/uploads/2008/01/deq-report-on-project.pdf
