A Groundwater Emergency – From Michigan to the Nation – Catalyst Event Coverage

PFAS – What You Need To Know

Chemical contaminants called PFAS, toxic to humans at minuscule doses, are the tip of the spear for threats to groundwater in Michigan and nationally. Nitrates, industrial chemicals, and pathogens have been swept underground for decades.

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Interview with Michigan Senator Gary Peters on PFAS

In an interview with Circle of Blue Senior Reporter, Brett Walton, Senator Peters outlines Congress’s role in responding to the nation’s PFAS crisis.

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Q & A with Dr. Mona Hanna-Attisha and J. Carl Ganter

Due to Flint, there has been a ripple-effect that people are now questioning the safety of their water. And through testing, people are finding contaminates, be it lead or be it PFAS. They no longer believing that their water is safe.

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Listen to the complete recording

Welcome

You can read the transcripts for all the audio that was recorded from A Groundwater Emergency – From Michigan to the Nation here.

Main Room Transcripts

Carl Ganter: Welcome to H2O Catalyst and What’s In My Water? That’s our question today. And fast emerging chemical contaminates called P-F-A-S, or PFAS, are the tip of the spear for threats to groundwater in Michigan and nationally. Nitrates, industrial chemicals and pathogens have been swept underground for decades. What else is in the groundwater and seeping into drinking water and what are the risks? And a new report calls the situation a groundwater emergency.

I’m J. Carl Ganter, Director of Circle of Blue and we’re coming to you live from Interlochen Public Radio with another interactive broadcast.

This H2O catalyst is part of a series of urgent conversations about the world’s number one global risk. Risks to supplies of fresh water around the planet and how to respond. To share your questions and comments via Twitter, #knowwater.

And we’ve already received dozens of questions, so send along yours. And you also have the chance to discuss these issues live during today’s event in special breakout groups with expert guests and journalists from Bridge, Circle of Blue, Detroit Public Television’s Great Lakes Now, and MLive.

After opening remarks, we’ll be going to our experts and into breakout groups where you can join the conversation and we’ll first be joined by Democratic Senator Gary Peters of Michigan. Last week, he called a Senate Subcommittee Hearing to dig deep into the ramifications of a chemical family called PFAS that is contaminating groundwater in Michigan and across the nation.

And we’ll speak with Dr. Mona Hanna-Attisha, the pediatrician who exposed water contamination in Flint, Michigan.

And then we’ll be joined by experts and journalists on the front-lines of these stories that are evolving every day. We’ll learn what happens to PFAS chemicals in groundwater from Dr. Christopher Higgins, Environmental Chemist at the Colorado School of Mines and more about what experts are calling Michigan’s groundwater emergency from Dave Dempsey, Senior Policy Advisor at Flow and the report’s author.

And we’ll hear about the clean water act, Coal, Ash, and Groundwater, from Lisa Widawsky Hallowell, Senior Attorney at the Environmental Integrity Project.

We’ve been receiving questions in advance and lots of them and we’ve passed them along to our moderators for the breakout groups ahead. And the results of the program, including a podcast version will be posted online.

But first, Circle of Blue’s Brett Walton spoke earlier today with Senator Gary Peters, Democrat of Michigan.

Brett Walton: Last week, you helped convene a Senate subcommittee hearing on the federal lull in responding to perfluoronated chemicals, also known as PFAS. Based on that hearing, what do you feel is Congress’s role in this?

Sen. Gary Peters: Well I think there’s a number of things that we have to do. First and foremost, we need to put more money into research. One thing that came out very clear, in the hearing, was that we still don’t know a whole lot about the human health affects about this class of chemicals and we’re talking about 3,500 different type of PFAS chemicals. We need to have increased research dollars. In fact, part of what came out of the hearing, which I think was a surprise to some folks, is that the impact of the human body may not be limited to the folks who are drinking water with PFAS in it. There also may be a pathway through the air, or even in skin contact, and certainly that’s very concerning, given the fact that PFAS is put on upholsteries and clothing and other ways that people may have contact with it, so certainly there’s a need for additional research. 

The impact of the human body may not be limited to the folks who are drinking water with PFAS in it. There also may be a pathway through the air, or even in skin contact, and certainly that’s very concerning, given the fact that PFAS is put on upholsteries and clothing and other ways that people may have contact with it, so certainly there’s a need for additional research.

But the other fact that I think is absolutely critical, is the EPA has an enforceable standard and I pushed them pretty hard in that committee that we’ve got to have the standard. Folks need to know what is a safe level, if any, and what standards do we have to clean up to. I was reassured by the EPA that they thought they’d have something this fall. But they’ve been saying that for some time. They’ve always been kicking the can down the road and we’re going to keep pushing that.

Gary Peters: And I think the third area, certainly, is where accountability can be tied to federal properties, particularly the Department of Defense. A number of military facilities have this type of contamination as a result of their fire-fighting foam and so there will be contamination related to that and we’re going to have costs associated with that cleanup.

Gary Peters: But I’ve also, in the short-run, have been working to try to limit the amount of PFAS that’s going into the environment. In fact, in the FAA Reauthorization we’re going to be taking up this week, in the Senate, I’ve got language in there that will allow civilian airports to use alternatives to PFAS in their fire-fighting foam, this reducing the amount going into our environment.

Brett Walton: The EPA is preparing a PFAS Management Plan that’s expected to be released by the end of the year. What do you hope to see in that plan?

Gary Peters: Well I hope, first off, we can get an enforceable standard so that we can hold folks accountable for this type of contamination. Not just federal government properties, Department of Defense, etc, but also private industry. No, this is not contamination that’s confined to federal properties, although that certainly contributes to it. But we have a lot of lakes throughout Michigan.

Brett Walton: When you say enforceable standards, meaning what?

Gary Peters: Well, meaning that there’s a standard to cleanup and if you can find accountability for someone, that they’re the ones responsible for the PFAS, that they would then be required to start mitigation strategies, as well as cleanup.

Brett Walton: And then are you interested in, or think it’s necessary to have a drinking water standard from the EPA?

Gary Peters: Oh yes, absolutely. Absolutely. So that’s part of what we’ll be continuing to push for.

Brett Walton: And if the EPA decides not to act, is that something that Congress should consider requiring?

Gary Peters: Yes. Yeah, definitely. There’s no question this is critically important. I think PFAS, this can very well be a situation very similar to lead and other things and products that have been widely used and were widely used throughout many, many years people have been exposed to. This is something that we need to be addressing nationally. This is not a Michigan issue. This is a national issue. In fact, at our hearing, I had my two colleagues from New Hampshire there who were very concerned. Very high levels of PFAS contamination in many parts of New Hampshire, as well, so this is a national problem that requires my colleagues throughout the Senate and the House to be engaged in.

This is a national problem that requires my colleagues throughout the Senate and the House to be engaged in.

Brett Walton: What information do you feel like you need to know, that you don’t know, that you need to take additional next steps?

Gary Peters: Well part of it is back to the health-related information, you know, the National Institute of Health, they don’t really, fully, understand how all this works and it may also be difficult to know if there are any kinds of safe levels. It depends on the kind of research.

Gary Peters: I did secure some additional funding through the NDAA, which is our National Defense Authorization for increased research into these chemicals, but that’s not an easy task given the fact that this class has 3,500 chemicals associated with it. But it certainly leads to a number of questions as to how we are creating these chemicals without background testing to understand what impact they may have on the human body. Eventually, they get released into the environment. Now with new technologies coming on board, we’re likely to see even newer compounds coming out at an accelerated rate. So I think this raises a host of questions, not just related to PFAS, but generally, the manufacturer of new chemicals and whether or not they pose a potential human risk.

Brett Walton: And lastly, the EPA has said that it will hold a community meeting in Michigan later this week to discuss PFAS chemicals. They’ve held similar meetings in other states around the country. Do you have any additional information about that meeting that you can share with us?

Gary Peters: We are in the process of working with them right now, as far as working out the details and we’ll have that information shortly.

Brett Walton: The meeting is on October 4th and 5th, correct?

Gary Peters: That’s correct. That’s what I have as the dates. But as far as a more individualized detail, my staff has been in communication with them and we’re still developing … We’re still finding out exactly what they have in mind and pushing them to make sure that they give every opportunity possible for individuals to be able to express their concerns about this.

Brett Walton: All right. Thank you Senator Peters.

Gary Peters: Great to be with you. Thank you so much.

Carl Ganter: And that was Circle of Blue’s Brett Walton with Senator Gary Peters. And now we have Dr. Mona Hanna-Attisha on the line. Dr. Mona, thanks for joining us today.

Dr. Mona: Thank you for having me.

Carl Ganter: It’s our pleasure. And you have a new book out, What the Eyes Don’t See: A Story Of Crisis, Resistance, and Hope in an American City. And that American city is Flint, Michigan. And last night you spoke to a full house of about 700 at the National Writers Series in Traverse City. Before you even started, you got a standing ovation, so overall, what do you think that means? 700 people standing before you even started. What’s that telling you?

Dr. Mona: It’s absolutely humbling and it reminds me that our state cares. It cares about water, it cares about our children. So, it was great to be in Traverse City this year, to share the story of Flint, but the story of my book and what I really I hope to share with you today is that Flint’s just the tip of the iceberg. You know the title of my book is What The Eyes Don’t See, so it’s very much about what happened in Flint. Lead is something that, lead in water, we don’t see it, we don’t see the effects of lead, it’s known as a silent epidemic, but it’s also about lots of things that we don’t see, not just in Flint. It’s about problems that are often underground and out of sight and not in my city.

Carl Ganter: Having been through the Flint crisis, what’s really your advice as Michigan and the nation turns attention from water pipes, water pipes really, to water underground, where it’s even harder to see?

Dr. Mona: Yeah and I think that’s definitely what Flint has brought to light, that we’ve really opened people’s eyes all over to what is in our drinking water. Because of Flint, there’s been an incredible ripple-effect that people are now testing and they’re questioning the safety of their water and they’re finding contaminates, be it lead or be it PFAS. They’re no longer believing that our water is safe. And I think that’s amazing, I think that’s incredible, I think people need to be engaged and understand what we really took for granted, and even myself as a pediatrician in the middle of the Great Lakes. I believed, and I told my patients, that our water was always safe and it was not. What we’re seeing right now with PFAS and what Senator Peters alluded to is really a history in this nation where industry has had the upper hand.

We have been governed by industry, making scientists prove that the chemicals that they put into the environment are safe until proven harmful and that is absolutely contrary to common sense and contrary to what we need to practice in public health and pediatrics, which is the precautionary principle. We should not be putting all these chemicals into the environment unless they are proven safe, rather than proving harm. And so often, we neglect what happens to our children who bear the brunt of these contaminants and we don’t see the consequences for years, if not decades, if not generations later.

Carl Ganter: So, it’s more than a doctor in a book, you were really a detective and really diving into this for groundwater and for these other contamination, contaminants, we met with people who, and one of our headlines was, there’s fear and fury, people were scared and they’re upset. It took you more than a year to really reveal the Flint challenge. What do people do?

Dr. Mona: Yes. I think one of the lessons of Flint, which was proven successful, is the necessity to form teams, to build a village of folks that are united in whatever cause that you’re working towards. So, in Flint it was a group of folks that were moms and activists and incredible role of journalists and water scientists and the medical community that came together. So, just as your agenda today has all these different, diverse multi-disciplinary folks who are bringing this issue to light, that’s how we should continue our advocacy as we continue to uncover these similar issues.

Carl Ganter: Great. Well thank you very much. And Dr. Mona, I know you have a busy day so thanks so much for joining us.

Dr. Mona: Thanks for having me, I applaud your efforts to bring these issues to light.

Carl Ganter: And now, we’re going to turn to Garret Ellison. Garret is a reporter for MLive who’s been covering the PFAS situation and Garret, we’d love for you to give us a general status, an overall report. What’s happened and where is this story headed?

Garret Ellison: Thanks for having me Carl. You might be able to say this past year, I think everybody who pays attention has been seeing PFAS in the headlines on an almost daily basis and that’s largely due to what happened last summer when the news broke regarding the Wolverine World Wide contamination in the Rockford, Belmont area. That was, essentially, the discovery that tannery waste, which had been dumped in the landfill back in the 60s and completely forgotten, in the meantime, was discovered to have contaminated wells in the Belmont area and once that discovery reached the public consciousness, it’s kind of brought us, to some degree in Michigan, where we’re at today, which is a statewide effort to root out PFAS in the environment in many different places and there’s many different medias possible they’re looking for in the groundwater, and lakes and rivers, and the Great Lakes, and landfill leachate, and wastewater, and drinking water. So, there’s a real effort by the state, right now, to find PFAS.

To go back a little ways, we first found it, I guess the state regulators first found it in 2010 in Oscoda at the former Wurtsmith Air Force Base and so the folks up in Oscoda have been really dealing with it and the fact of life much, much longer than everybody else has.

You referenced earlier your Circle of Blues piece, “Fear and Fury.” That’s a pretty good way, I think, of characterizing what the folks in Oscoda are feeling. They’re mad. Things have been taking quite a while to get to where they are up there, which is, at this point, they’ve got some actually remediation going on which is further along than any other site in Michigan.

We’ve got quite a large universe of sights though, and part of the issue, well, part of everybody seeing new headlines on a daily basis, it’s because the state’s looking for, paying attention to it now and it’s finding it. And now, people are becoming, through that process, people are becoming much more aware of what the risks are. What they mean, we’ve got, I think at this point, we have about 1.8 million people in Michigan are drinking municipal water with some level of this contaminate in it. That ranges from, I’d say, 1,800 parts per trillion is what they found in Parchment and then down to about two parts per trillion and that’s what you’re getting in the Grand Rapids water system, which pulls directly from Lake Michigan and isn’t filtered in any way. At least for this contaminate.

It’s quite a lot of people in Michigan are drinking some level of it. There’s been a lot of, I think, attention recently on the Huron River over in Southeast Michigan. They’re finding PFAS is entering a tributary through a wastewater treatment plant in Wixom. It’s an industrial source of the pollution. It’s chrome-platers, the auto-supply industry. So, you’re seeing a Do Not Eat Fish advisory, an emergency Do Not Eat Fish advisory, which is a fairly rare thing. You’re seeing a lot more attention being paid to foam on surface waters.

Used to be, in the past, people would just not really pay a whole lot of attention to, you see foam on the river and you don’t think too much of it, but now people are paying more attention to that and going, okay, is that a pollution concern? PFAS is a factor and when it adds to the water agitation, it foams up. We’re seeing that in Rockford, in Oscoda, we’re seeing it on the Huron River in Ann Arbor, we’re seeing it in Grayling, it’s starting to pop up and it’s not just in Michigan. There are other places around the country, and the world, that are having that problem.

So, we’ve got a pretty large universe of contaminated sights in Michigan. We’re dealing with canneries, waste dumps, air bases, Wurtsmith, Sawyer, Grayling, Battle Creek, Alpena, you’ve got airports. Ford Airport in Grand Rapids, Bishop in Muskegon, Muskegon County Airport.

It’s getting into lakes and rivers through wastewater treatment plants, sources include chrome plating industries, GM, former GM properties, the Racer Truck stuff, old landfills, active landfills, it’s quite a broad universe.

Carl Ganter: Quite a list. We’ll come back to you in the breakout group as well, too and we can elaborate on that. So Garret Ellison’s been covering the story for MLive and his reporting can be found at mlive.com. And like I said, we’ll hear more from you, Garret, in just a few minutes.

But now, let’s go back to Brett Walton, our senior reporter at Circle of Blue who’s been covering groundwater issues worldwide.

And Brett, we heard from Garret [Ellison] about Michigan’s groundwater challenges. And your conversation with Senator Peters, set the scene and walk us through the complicated groundwater story that’s affecting people across the nation.

Brett Walton: Thanks, Carl. While much of the nation’s groundwater is of good quality, pollution risks are numerous, dispersed, and growing. Coal-ash ponds, drip heavy metals into aquifers, while nitrates from farms, livestock operations, and septic tanks percolate underground. Abandoned mines and industrial sites often place the burden of cleanup on the public. Add to that, you have leaking oil storage tanks, wastewater injection wells in waste dumps, as other sources of concern. Across the country, the slow buildup of pollution, like the accumulation of carbon in the atmosphere, has profound consequences.

People are getting sick with cancers, diarrhea illness, developmental diseases, and maladies we’d previously thought eradicated in the country. The hottest groundwater pollution issue today, as we’ve mentioned, is the group of industrial chemicals known as PFAS. Thousands of chemicals, as others have alluded to, are in commercial use in the US without knowledge of how they alter human bodies or ecosystems as a whole. These compounds have found their way into groundwater around the nation.

PFAS, the latest example, they were developed by chemical companies after the second World War. They were incorporated into a dazzling range of household products: non-stick skillets, water-repelling jackets, stain-resistant carpets, floor cleaners, waxes, paints, insect traps. A wide, wide variety of uses. In groundwater, they’ve been traced across the country to military bases, fire stations, landfills, hospitals, schools. These are all large institutions that use foams or waxes or cleaners that contain the chemicals.

In fact, the closer that regulators and scientists look at drinking water supplies, the more PFAS chemicals they find. The Defense Department is one major source. The department counts more than 400 active or closed bases with a known or suspected release of PFAS. The military has spent more than $210 million on cleanup so far. What they will have to spend in the future is a matter of some debate, full remediation and payment of health benefits, if it comes to that, will cost tens of billions of dollars, though no comprehensive accounting has taken place.

These issues are playing out in hundreds of communities around the country from New Hampshire and New York to Colorado and Washington. They’ve drawn intense scrutiny in Michigan, which, as Garret mentioned, is one of the most affected states.

In Michigan, at least 35 contamination sites, from military bases to industrial waste dumps, from the tannery wastes have affected drinking water, as we said, perhaps 1.8 million people, according to state figures.

Brett Walton: Today, we have three speakers who will help guide us through some of these issues and we’ll be able to join them, listeners will be able to join them in breakout groups later in this call. Our first speaker we have is Christopher Higgins. He’s an Environmental Chemist at the Colorado School of Mines. Christopher, why do we need to pay attention to PFAS chemicals?

Dr. Higgins: It’s a great question, and the short answer is that the group of compounds that we’re really most concerned about, which are these truly perfluorinated compounds, a subgroup of PFAS more broadly, they’re extremely persistent in the environment. Basically, they redefine the meaning of environmental persistence in environmental chemistry. And what that means is they’re going to be with us for a very, very long time. So that alone is potentially problematic because it just leaves them there that much longer to potentially cause a problem.

Some additional aspects of these chemistries, or these chemicals I should say, that also have created some concern and chief among them is the fact that these compounds combine two types of behavior that we don’t normally see in a combination. When we think about environmental contaminants, there are several compounds out there that are relatively mobile, so they move fairly quickly in groundwater and service waters and yet, they don’t tend to bio-accumulate. On the flip side, they’re also some compounds, PCBs being a good example, which are fairly bio-cumulative, but not very mobile. We think of them as very much focused on specific sites. A contaminated sediment site or so on.

The problematic aspect of PFAS, again, particularly the perfluoroalkyl acids is that some of them are both mobile and bio-cumulative. And so it means they can spread much more rapidly, but also bio-accumulate, either in fish or in crops. And so that creates lots of concern in terms of the spread and speaks to the broader potential for exposure of the population.

Brett Walton: All right. Thanks Chris, we can go a bit more into detail on the fate and the transport of PFAS chemicals in the environment in the breakout groups. That was Christopher Higgins and Colorado School of Mines.

Our next speaker we have is Dave Dempsey. He’s a Senior Advisor at FLOW and he’s the author of a recent report on Michigan’s groundwater emergency.

Dave, what makes it an emergency?

Dave Dempsey: Good afternoon. Well, it’s an emergency because there are a variety of threats to groundwater that are either being poorly addressed or not addressed at all. And I think it’s important to begin by just recognizing how important groundwater is. Talked about what the eyes can’t see and they definitely can not groundwater until it comes to the surface, but while it’s beneath the surface, it can do a lot of good or a lot of harm.

In Michigan, 45% of the population gets its drinking water from groundwater sources. That figure, nationally, is about 38%. But we also depend on it for other uses, such as agricultural and industrial and importantly, if you want to have healthy Great Lakes, you have to have healthy groundwater. About 20% to 40% of the flow in the water budget in the Great Lakes originates as groundwater, either seeping directly into the lakes or more commonly feeding rivers and streams that then are transported to the lakes. So reportedly, the importance of groundwater, but also the variety of threats, some of which we’ve already heard about, including PFAS. Some of the factors include leaking septic systems, which in Michigan, are estimated to be about 130,000 that leak. Not only bacterial waste, but because we use a lot of chemicals in our homes, can also release chemicals to the groundwater.

As mentioned, agricultural practices can also contaminate groundwater and are doing so at thousands of private wells across the state with nitrate. They also have a legacy of thousands of still not cleaned up contamination sites for which we need some kind of funding source to ensure they don’t cause further problems.

Michigan tax payers have already spent over $1 billion on cleanup and it looks like they’ll have to spend another billion over the next 20 years to deal with the groundwater contamination.

Finally, one of FLOW’s central purposes is to remind people of the importance of the public trust doctrine and the responsibility of government to protect water resources unimpaired and to prevent privatization and because the groundwater is so closely linked to surface water, it’s important that we extend that obligation and those protections to groundwater, as well.

Brett Walton: All right, thank you. That’s Dave Dempsey and we’ll have a chance to go more into depth on Michigan’s groundwater emergency in the breakout groups.

Our third speaker we have today is Lisa Widawsky-Hallowell. She’s a Senior Attorney at the Environmental Integrity Project who focuses on coal ash.

Lisa, how does coal ash affect groundwater?

Lisa Widawsky: Sure, that’s a really important question this year, and in general. So, coal ash, also known as coal combustion residuals, or CCRs, is the byproduct of burning coal. It contains a variety of pollutants including arsenic, selenium, boron, and cadmium that can cause adverse effects to human health and the environment if released into groundwater and other mediums.

Every year, more than 110 million tons of coal ash is generated at coal-fired power plants. While some is reused, much of the coal ash is simply disposed of in dry disposal place called landfills or wet ponds called surface impoundments. Coal ash has been in the news a lot in the last 10 years, and recently, due to several catastrophic breaches, including the breach at the TVA Kingston plant in 2008, which caused more than a billion gallons of coal ash to spill into two rivers. Most recently, coal ash has been in the news as Hurricane Florence headwaters, in North Carolina, breached coal ash dams at a couple of power plants causing coal ash to flow into the Cape Fear and Neuse rivers.

However, much of the risk associated with coal ash disposal sites lies, not in the catastrophic breaches, but in the leaking and seeping of coal ash contaminants from unlined, or poorly lined disposal units into underlying groundwater. Many coal ash disposal sites have been operating for decades without liners or with inadequate liners and many sites that are no longer receiving waste can still continue to leak pollutants into groundwater at unsafe levels for a century or more.

Prior to 2015, there were no federal regulations governing how to dispose of coal ash, so states had a patchwork of laws, or some had no rules at all, for how or where coal ash could be placed. A compilation of damage cases by the US EPA following the breach of the Kingston dam resulted in EPA confirming, in 2014, that there had been at least 157 coal ash damage cases nationwide. Notably, for our talk today, 10 of these damage cases were in Michigan.

Damage cases are sites where health effects were confirmed by scientific studies or administrative ruling and this is the highest number of damage cases for any type of waste reviewed by the EPA at that time.

Carl Ganter: What we’re going to do is put everybody into breakout groups and you’ll be able to carry on that conversation with Lisa and Dave and Chris Higgins here in just a minute. And the panelists and moderators will explore these ideas in much more detail.

Once you’re in the group, this is where it gets fun, you’ll see a shared document on your screen. If you have a question for a panelist, you’ll type it into the document so the moderator can see it and you’ll have the choice of joining one of these three dynamic groups using your phone or the Maestro screen. So pay attention here, I’ll say this twice.

Group one is Great Lakes Now reporter, Mary Ellen Geist, who’s joining us. And she’ll be talking to Dr. Christopher Higgins and you’ll hear more from Dr. Higgins, and Environmental Chemist at the Colorado School of Mines. And, as you heard, an expert of PFAS chemicals and groundwater.

Group number two is MLive reporter, Garret Ellison with Dave Dempsey, author of the new report, “Michigan’s Groundwater Emergency,” and talking about other forms of pollution beyond PFAS that are affecting Michigan’s groundwater and groundwater elsewhere too around the Great Lakes.

And then group number three is Circle of Blue’s Brett Walton with Lisa Widawsky-Hallowell, Senior Attorney with the Environmental Integrity Project, talking about the Clean Water Act and more specifically, about coal ash.

So we’ll give you a moment to make your choice now. Again, press one on your phone, or the raised hand on your interface for group one with Mary Ellen Geist and Dr. Chris Higgins on PFAS impacts. Press two for Garret Ellison and Dave Dempsey on Michigan’s groundwater and three for Brett Walton with Lisa Widawsky-Hallowell and the Clean Water Act.

[Participants enter breakout conversations.]

Carl Ganter: Carl Ganter here. Some great conversations everybody. Welcome back. Fascinating listening to your comments in the breakout groups. I had a chance, actually, to surf the sessions. So we’ll take just a few seconds to bring us all back to group and we’ll have report outs from our discussion leaders and we’ll have our experts in the room, as well. So, just hang with us for just a moment or two and we’ll bring you all back to group.

Great. Well again, fascinating listening to the conversations. What I’d like to do is take a few minutes to hear highlights from each of our discussion leaders and then we’ll go back to a bigger group discussion for overall perspective. We’ve been capturing your comments and additional questions.

And also, let me point you to the work of our moderators and our collaborators in this project. Detroit Public Television’s Great Lakes Now is at greatlakesnow.org. Bridge Magazine is bridgemi.com, of course mlive.com, and circleofblue.org. You’ll find all of our Great Lakes and national and global groundwater coverage there at circleofblue.org.

Mary Ellen, you were in with Dr. Christopher Higgins. Give us a sense of what you talked about. What were some of the main points?

Mary Ellen Geist: I think one of the most riveting parts, and perhaps frightening is we talked about response to it and how the government might be involved and what can we be doing, personally, and on public level, on a federal and local and state level. And he said this is one of the most challenging issues of our time. And even as a chemist who studied this chemical for 17 years, we know so little about it.

What we do know, I think, causes a lot of consternation for so many people in that it is a forever chemical. This chemical’s in you, it’s in me, it’s found in the blood of polar bears in the Arctic. It’s everywhere. If it is ingested, it stays in the body for many years and if it’s in rivers and streams and oceans and lakes, it stays in for a very long time, as well. And so, we could get into some of the chemical makeup and some of the discussions we had of how it’s in the groundwater, but I think the pervasiveness of it and the way that it stays in the body and in the land and in the environment in every way and how it’s found everywhere, all because of the chemical that humans wanted to find that would waterproof things, would work in fire-retardants, would keep oil and water off a material, and the way that humans had no idea, when they invented this chemical, that it could end up everywhere and in our bodies. And there really are not many answers right now about how to get rid of it.

Carl Ganter: Mary Ellen, thanks so much, we’ll come back to you in just a bit.

Carl Ganter: Garret, fill us in.

Garret Ellison: Well, Dave and I talked about, largely, the new report out from Dave’s non-profit, FLOW. For Love of Water in Traverse City and we talked about the fact that it sounds like Michigan’s a fairly poor steward of the groundwater. The report is more or less calling for an overhaul and the way the state passes groundwater through regulation and maybe some of the philosophical approach to thinking about it. It’s an out of sight out of mind approach is the way that Dave and FLOW kind of characterized it.

We talked about some of the concerns, some of the issues that we’re having with groundwater, particularly related to contamination from septic systems. It appears something that the … estimated 130,000 leaking septic systems in the state. Michigan’s the only state in the nation which lacks a statewide law protecting groundwater, or regulating groundwater as it relates to septic systems.

So that’s one of the recommendations that FLOW is making, related to how we ought to rethink our approach to groundwater. Some of the recommendations here include identifying long-term funding, such as a bond fund going straight to voters, figuring out ways to clean up orphaned toxic sites. Some of these sites that no longer have a liable party, in which case the public ends up being on the hook to pay for it.

We talked about some public education, how to discuss, how to get the word out, so to speak. I guess some of the thought here is that we’re just going to have to find out how the legislature and the administration, whether it be a Schuette administration or a Whitmer administration, that’s going to approach this stuff following the election in November.

Carl Ganter: Great, thanks Garret. So it’s not just PFAS, it’s nitrates, orphaned or legacy toxic sites, and a big taxpayer expense.

A more national conversation with Brett Walton, who was with Lisa Widawsky-Hallowell and a national perspective. Brett?

Brett Walton: Hi Carl. We talked, mostly, about coal ash, which has a lot of moving pieces right now in a legal realm and especially, but also, in some rules and regulations.

Initially, we started with a baseline knowledge about where coal ash ponds are located, what they are, what they store, and how they interact with groundwater and can be a conduit in some cases, for pollutants to move to rivers and lakes through that groundwater. Some of those moving pieces we talked about are kind of two-fold. Once was a rule that the EPA put out in 2015 about coal ash impoundments and that was recently sent back to the EPA by federal courts saying certain provisions were not strong enough and that there needs to be revisions that take place for that.

The other path we talked about, on a legal front, is a bunch of court cases, right now, that have been heard by federal appeals courts about whether coal ash ponds, if they leak pollutants via groundwater into rivers and lakes, whether those coal ash ponds should be regulated under the Clean Water Act, and courts, to this point, have come to conflicting conclusions about this conduit theory that groundwater pollutants that move through groundwater to a river or lake, whether that should be regulated or not and it’s something that, ultimately, might end up as a question before the Supreme Court because there’s been a split in the federal appeals courts and there’s been a couple petitions to the Supreme Court to hear this issue. That’s something to pay attention to in the years to come about, it’s really a question about the scope, of the Clean Water Act, which was generally not applied to groundwater.

Carl Ganter: Thanks Brett. Great reports from everybody.

Carl Ganter: A quick question for all of you. Any questions among the group of moderators here about the other groups that you weren’t part of?

Carl Ganter: Mary Ellen, any questions for the other folks?

Mary Ellen Geist: Well I think that, in general, what I’m not hearing that I’m getting just a lot of people in our space, at greatlakesnow.org are asking questions about the health effects. And so from my research, I just wanted to lay this out and also see if any of you discussed this in your groups, but as far as we know, it has been linked to high cholesterol, testicular cancer, kidney cancer, ulcerative colitis, thyroid problems, developmental problems, potential for miscarriages, and I guess, I sometimes think in the discussions, we don’t really talk about what could potentially happen to human beings if they ingest high levels of PFAS and I guess I just want to bring that up. It can be quite a dangerous substance, according to many people, at high levels. And I wondered if any of you discussed this in any of your groups, the real effects, potential effects of drinking high levels of PFAS over a long period of time in drinking water or through eating fish that have it. Anything else that any of you can say from your groups ’cause those are the questions that I’m getting from people asking me questions about PFAS.

Garret Ellison: This is Garret. I can tackle that a little bit. With the caveat, it’s not really a discussion or point that we got into with Dave Dempsey and I in our group. But, nonetheless, having done a lot of reporting on PFAS, what I can say is, Mary Ellen, the list of symptoms you just rattled off, that’s largely the known associations, I believe, that came out of what’s known as the C8 Health Study which was conducted on the population around Parkersburg, West Virginia, in the Ohio River Valley, related to DuPont putting a lot of PFOLA, one particular PFAS compound, into the drinking water supply for numerous communities. I think there was something like 50,000 to 70,000 people were part of this health epidemiological health study that was paid for through a lawsuit brought against DuPont. And those health effects that you outlined are kind of the baseline to some degree, health effects that the ATSDR, the Agency for Toxic Substances and Disease Registry, which is part of the CDC.

If you go to their website and you click on the links related to what are the known health effects of PFAS, that’s generally the list that you get. That’s not the only associated health effects, it’s just sort of the most concrete ones that have been studied in terms of a population-wide study that has stood up to peer review pretty well. There are definitely others. It’s just one of the, I think, difficulties with PFAS that researchers and regulators and the academic community are trying to figure out is what are the different health effects of the different variants of chemicals in the PFAS family? So, what are the health effects of PFOS exposure versus PFOA exposure over an extended period of time? What are the health effects of a mixture of PFOS and PFOA and PFHXS and PFNA and other PFAS compounds that tend to be found in any given water sample that’s tested for PFAS? You don’t usually just get one, you get several. Some of them are, individually at low levels, but when you add them together and the sum total can be fairly high. Higher than health advisory benchmarks at certain times.

And what the fairly consistent answer that we get from health experts is, we just don’t know yet. There’s just not enough study. Not enough epidemiological study and it’s frustrating to try and, from a journalist perspective, to try and translate that and turn it around and convey the seriousness of the problem without hard data sometimes.

Carl Ganter: It’s complicated. It’s really complicated.

Carl Ganter: Brett, did you have any questions for the rest of the group there, after being with Lisa there and then hearing from Garret and Mary Ellen?

Brett Walton: I think we’ve got some audience questions that have come in, we can get to those.

Carl Ganter: Go for it.

Brett Walton: One of which here was a question about cleanup and who’s going to pay for cleanup costs, why do water utilities have to take responsibilities for cleaning up someone’s problem.

So cleanup cost is a good question. It’s something that, from a national level, we have the Superfund Program and that tries to find a responsible party and recover some of the cleanup costs from them. The problem with PFAS is that it needs to be designated a hazardous substance by the EPA to allow EPA to have the authority to require cleanups and to fine the parties to recover costs from.

One of the problems here is that sometimes you can not find a responsible party because the company might have gone out of business or it changed hands a bunch of times. In that case, cleanup costs can be put on the taxpayer. And that’s, I think, one of the points in the FLOW report is that there’s a lot of sites in Michigan that are on the taxpayer now because no responsible party has been found.

Cleanup costs are going to be massive. There’s been no estimate done, nationally, to take a look at this. I know that Senator Peters, in his hearing last week, requested from the Defense Department an estimate of what it thinks it might take to clean up PFAS compounds at military bases and that’s something that we’ll be looking for in the months to come, is are there estimates and what is that number?

Carl Ganter: Great, thanks Brett.

Chris, I’m really curious what you’re hearing. You’re in Colorado looking across the way here at Michigan and, as what Mary Ellen characterized as one of the most profound challenges of our time. How’d your conversation go there and what are you hearing from us, here in Michigan?

Dr. Higgins: Well I think she did a great job characterizing that because I do think, from an environmental contaminant perspective, it is one of the more challenging issues that we’re going to have to deal with. And hearing a little bit about the issue, talking with other health experts about what does it mean we’ve got all this milieu of compounds in our water and the frustration of not knowing the answer, we hear the same thing here talking to folks. And I think it brings out the broader conversation about how we’re addressing chemicals and safety and I think that was brought up in the very first part of this discussion and the need to rethink, maybe, how we’re doing it and to think more about the issue of precautionary principle. I think one of your first speakers mentioned that.

I think, from my perspective, the public has, essentially, accepted the idea, many folks from the public have accepted the idea of the precautionary principle, that is chemicals should be considered dangerous until proven safe, but that is not necessarily how our regulations are set up. And so I think that there’s going to have to be a little bit of a reckoning with that. This issue maybe the catalyst to provide that. Time will tell to see how that plays out.

Carl Ganter: Great, thank you Dr. Christopher Higgins joining us from the Colorado School of Mines.

So, it’s one of the most challenging issues of our time. You heard, it’s all about what we can’t see and from the Great Lakes to polar bears, we’re seeing contaminates reaching from our shores all the way to the polar ice caps.

So if you learned today, it’s a dynamic and deep and changing story and we barely just scratched the surface. And from our six Great Lakes in Michigan to the aquifers and contamination across the state and the nation, and what we’re seeing here in our reporting at Circle of Blue around the world. It’s one of the most important stories unfolding.

We did hear some solutions and some responses. A lot of call for education asking, really, what’s in the water? Is it safe? And we’ll keep asking the questions and hope that you will, too. And to, perhaps, rethink how we think about that what we can’t see and that what comes out of the tap.

Again, just the start of a much, much greater conversation. And so I want to say thanks to our guests today and of course, Senator Gary Peters and Dr. Mona Hanna-Attisha. Dr Christopher Higgins and Dave Dempsey and Lisa Widawsky-Hallowell. And to our journalists who joined us today, Garret Ellison, Mary Ellen Geist, Jim Malewitz was in the room there too, from Bridge. And to Bridge and Detroit Public Television’s Great Lakes Now.

We’re in the studios of Interlochen Public Radio with engineering help from Gary Langley and to our team at Circle of Blue has all been here working on questions and all the behind the scenes. We’ve had help from Circle of Blue’s Laura Herd, Connor Bebb, Cody Pope, and Matthew Welch. With Kayla Cragg in Michigan, here and Barry and Sherry of the Maestro and Conference team back in San Francisco and other parts far and wide.

So read more at bridgemi.com, circleofblue.org, and greatlakesnow.org and also of course mlive.com. A podcast version of this event will be posted online at circleofblue.org and from all of us at Circle of Blue here, thanks so much for joining. There’ll be lots more. I’m J. Carl Ganter.

Testing the Clean Water Act, Coal Ash in Groundwater Breakout

Brett Walton: [Welcome to the breakout room, Testing the Clean Water Act, Coal Ash in Groundwater.] We have a big crowd in here. Just a few housekeeping notes so everyone understands what’s going on. The document in front of you is a shared document. Everyone has access to this —what you can do is type questions that you might have for Lisa into the document, and as we go through this conversation I’ll pull questions from there to work into the conversation. But first, I want to start off again by reestablishing a basic knowledge for everyone that’s in the room, and building off what you said in your opening remarks, Lisa. The coal ash one, just briefly, where it comes from and where it’s stored. Can you clear up those two things for us?

Lisa Widawsky Hallowell: Sure. Coal ash is the byproduct that is formed when coal is burned at coal fired power plants, and some of it gets reused in various applications, but over the past several decades, much of it gets disposed of in pits, either ponds or landfills, and currently as of 2015, there is finally a federal rule that governs disposal of coal ash. It’s set, for the first time ever, a national floor to say how coal ash should be disposed of. It included groundwater monitoring requirements, cleanup requirements, closure requirements, structural integrity requirements, and several other operational and design techniques that would apply to certain units. Prior to that, coal ash had been regulated primarily by the states. Some states had no rules at all for how coal ash should be regulated, and other states had a variety of different techniques. As I was alluding to earlier, there was a very high number of damage cases established by EPA, meaning that the patchwork of regulations that existed previously for disposal of coal ash really wasn’t doing a good job of containing the toxic pollutants that are in coal ash and keeping it out of the waterways.

Brett Walton: I want to get to those damage cases in a bit. But one other thing establishing our base knowledge before we move on, we say coal ash ponds for how coal ash is stored. The ponds, meaning it’s excavated next to or near the coal plant. This is not putting it into an existing water feature. It’s a constructed pond.

Lisa Widawsky Hallowell: Could be. It depends how old and what rules applied. But yeah, coal ash can either be stored in landfills, which means it’s a dry site without water, or coal ash can be stored in a pond, also called a surface impoundment with water. Some of these have been created through excavation. In some cases, coal ash was placed directly into an existing pond or an existing stream was buried for construction of coal ash ponds, so there’s really a variety of ways that the ponds were created and are still created. Some of these ponds place the coal ash directly in contact with groundwater, and of course when pollutants that are in coal ash, like heavy metals, come into contact with groundwater, they can mobilize and get out into drinking water wells and flow into surface waters and threaten downstream or downgrading users.

Brett Walton: With the nature of coal fire power plants, they need water to cool and operate the facilities.

Lisa Widawsky Hallowell: Yes.

Brett Walton: They are often located on or next to rivers or lakes, and so the location of the pond, if they’re at the facility, would be also near the rivers or lakes?

Lisa Widawsky Hallowell: Yes, in almost every case, that’s true. Power plants are almost always located next to a river or a lake, and the coal ash disposal units are almost always right on the plant property right next to the combustion operation, and therefore also very close or adjacent to waterways.

Brett Walton: How can the location of these facilities be problematic for both groundwater or rivers?

Lisa Widawsky Hallowell: Due to the recent nature of these coal ash disposal regulations, a lot of units that were previously placed allowed coal ash and continued to allow coal ash and its pollutants to flow right into groundwater. Sometimes these units were built on unstable ground, and in a lot of cases, the groundwater at these sights flows directly into surface waters, meaning that coal ash, once it gets into the groundwater, not only impacts users of groundwater, but can immediately impact users downstream of the nearby waterway.

Brett Walton: It can get into groundwater, because most of the waste sites were not lined. Is that right?

Lisa Widawsky Hallowell: That’s right. The current rules have more stringent requirements for new units to have what’s called a composite liner, a double layer of geo-synthetic material and other materials that prevent leakage of coal ash pollutants into groundwater. Many sites, however, have no liner at all, or use coal ash that’s been compacted as a liner, or simply use clay liners and other type of liners that are maybe not as permeable as having no liner, but have been proven through testing to still allow the pollutants to move rather quickly into groundwater or move at unsafe levels into groundwater, and therefore hydrologically connected streams as well.

Brett Walton: Hydrologically connected is a phrase we’ll come back to when we look at some of the legal questions. But first I want to go to the damage cases. Can you explain more how these damage cases were calculated and what a damage case means?

Lisa Widawsky Hallowell: Sure. After the breech of the TVA Kingston Spill in 2008, EPA undertook, really in earnest for the first time, an attempt to regulate coal ash. As part of that, they asked the public to provide information about sites where levels of pollutants from coal ash sites had exceeded safe levels in groundwater or surface water or had resulted in impact to human health or impact to aquatic life or wildlife that were documented through scientific or administrative ruling. It’s important to say that this list that they mapped was not actually the result of them surveying utilities or doing an in depth study on their own, it was really just a request for information, and just from that alone, my organization, the Environmental Integrity Project and several other environmental groups submitted information that we had discovered reviewing state files showing what ended up announcing to an incredibly vast number of damage cases throughout the country.

Brett Walton: What’s that number, right?

Lisa Widawsky Hallowell: Yeah. The EPA was able to confirm 157 of these damage cases throughout the nation. This was after … Meaning that they had actually gone through the information that was submitted. They did reject some sites, most of which were some sites where other waste were co-mingled with coal ash, so it was maybe difficult to determine which of the impacts were from coal ash or not. But these 157 were all confirmed by EPA as being damaged, and that the damage was attributable directly to coal ash disposal.

Brett Walton: By damage, we mean documented effects on human health or water quality measurements or fish and wildlife, right?

Lisa Widawsky Hallowell: Correct.

Brett Walton: What has resulted from this list of damage cases? Has there been any consequence of that?

Lisa Widawsky Hallowell: Unfortunately, EPA hasn’t done a big enforcement push to clean up these sites, although a lot of these sites were already in the process of being cleaned up and that’s how we have the information. They were already some of them subject to cleanup orders at the state level which is why we have the information about them. But the big change that happened was that the following year, EPA finalized the first ever Disposal Rule. In addition, it also finalized the second rule under the Clean Water Act dealing with discharges of pollutants from coal ash waste streams from power plants. These two rules that both came out in 2015 really created an opportunity to get the discharges coming out of these sites cleaned up. We’re still actually challenging, we the environmental community, is still working to strengthen both of those 2015 rules. Ironically in the midst of that, the current EPA is trying to roll back and dismantle these rules at the same time now.

Lisa Widawsky Hallowell: It’s an interesting year that we live in for coal ash because there’s really a lot of moving pieces on the regulatory front, and there’s also been a lot of court case activity, which I know we wanted to discuss as well.

Brett Walton: Yeah, I do want to get into some of the legal aspects. To do that, there’s some acronyms that I think people need to know. One is RICRA, and that stands for Resource Conservation and Recovery Act, right?

Lisa Widawsky Hallowell: Yes, that’s right. That’s really the federal solid and hazardous waste Disposal Rule, which is different than the Clean Water Act, which is the federal … it’s still a federal rule, but that’s the act that prohibits discharges of pollutants into navigable waters without a permit. Both of these laws are very important when we’re talking about coal ash. The disposal law, RICRA, deals with how do you dispose of coal ash, and then the Clean Water Act deals with what limits do you have to put on a discharge from a point source of a pollutant into navigable waters. They each have their separate hemispheres, but they both are relevant.

Brett Walton: We’re talking about RICRA, and I’ll pull a question from the shared document here. One of the listeners asks, “What would be the best way to dispose of coal ash considering what has been done in the past and what advances we have now?”

Lisa Widawsky Hallowell: Absolutely. We know now that there are certainly safer ways to dispose of coal ash. EPA’s rule is a helpful starting point in that regard. It’s been well documented that placing ash in ponds is more dangerous, because as I was mentioning earlier, placement in ponds allows for the quicker mobility of pollutants that are in the ash into waterways. If you dispose of coal ash in landfills, that significantly decreases the risk. But that’s not enough all by itself. The landfills also need to have what I was talking about earlier, the double liner or composite liner, to keep pollutants that might still migrate through a landfill into the groundwater out of the groundwater, as well as a leachate collection system, so that any pollutants that do migrate to the liner can be extracted and disposed of or treated prior to reaching groundwater.

There’s a lot of other mechanisms, capping the site so that rainwater doesn’t infiltrate the site and encourage mobility of the pollutants is also really helpful. The rule includes a lot of other really important measures, including testing for structural stability to prevent breeches, and of course an extensive groundwater monitoring program so that you can determine for the safety of the local community the extent to which, if pollution is able to get through all of these controls, the extent to which it does so and what the levels are so that you can keep the surrounding community safe. That’s just a few of the examples. That’s required for new units that are being built. Those are some of the things that are required in order to operate.

Brett Walton: As we see use of coal and electricity generation going down, are there new coal ash ponds being constructed?

Lisa Widawsky Hallowell: Well, that’s an interesting question. The rule covers certain units and doesn’t cover others, and actually we just had a very significant victory that speaks to that. Under the rule, coal ash ponds that were unlined were allowed to continue operating until it was clear that they were degrading groundwater above space level. Environmentalists had a really hard time with this proposition when the rule was passed because of the very clear dangers that EPA found when it was assessing the risk to groundwater sources from unlined ponds. We recently had a very significant victory in the DC Court of Appeals, and one of the things that the court agreed with us on, one of the points on which we won, was that unlined ponds are really too dangerous to operate and that EPA has to actually go back and change their rule to cease allowing unlined ponds to operate.

It also agreed with us that lining ponds with compacted soil does not provide the same level of protection as a composite liner that has basically a plastic geo-synthetic layer. That’s another point that the court said EPA has to revise their rule on that point. Another group of ponds that the rule … we didn’t feel adequately had addressed was ponds at inactive power plants. EPA had said that ponds at inactive power plants, power plants that are no longer producing energy, weren’t going to be covered by the rule. This was another significant point that we won on, and the court determined that EPA’s decision to exempt ponds that … we call them legacy ponds, ponds at plants that no longer produce power, then cannot any longer be subject to the rules requirements.

Brett Walton: The [crosstalk 00:15:40] here is that the EPA passed the Coal Combustion Rule, the Coal Ash Rule in 2015, and the DC Federal Court in, I think, August said that the rule was not strong enough in certain areas, so that the EPA now has to go back and revise some of those requirements?

Lisa Widawsky Hallowell: That’s right, that’s right. Yeah, and this is a huge victory. We estimated that this will probably result in the closure cleanup, or at least the quicker closure or cleanup of about 90% of the approximately 1000 coal ash ponds that were impacted and were the subject of this decision. This is really a monumental decision in terms of getting some of the most dangerous coal ash disposable sites cleaned up. While it is possible for … I guess to answer your question in a very long way, while it is not prohibited that a new surface impoundments will be built, it’s very unlikely, we’re not seeing utilities looking to build surface impoundments for coal ash disposal, they’re moving towards towards disposal in landfills, and they’re certainly moving towards trying to beneficially reuse as much of the waste as possible, because not only are the regulatory requirements really discouraging of placement in surface impoundments, but they also face increased liability as a result of operating an impoundment due to these catastrophic breeches that we’re now seeing, and the overflows that we’ve seen I the wake of hurricane Florence, although one of those was a landfill. Hopefully-

Brett Walton: What people will have to do is look at the coal ash ponds at inactive sites and the ones that are closed but still unlined.

Lisa Widawsky Hallowell: Right. Those units, which previously didn’t have to comply with any of the requirements of the rule, will now have to undergo closure as prescribed by the rule and monitor the groundwater as required by the rule, which will really be helpful for folks that live near these sites. Without groundwater monitoring, you don’t know if you’re … and especially a lot of these sites are in rural communities where they’re still drinking off of private wells. Without that extensive groundwater monitoring that the rule provides, even though it doesn’t monitor all of the pollutants that we had hoped that it would, it does require a pretty extensive groundwater monitoring system. That will really help local folks be able to determine whether their water is safe, which is, of course, one of the most important purposes of this regulation.

Brett Walton: You mentioned utilities moving towards beneficial reuse of coal ash. There have been some questions here on the shared document about reuse and how it can be used in a positive way. One example is concrete, but do you have a bit more about that?

Lisa Widawsky Hallowell: Yeah. That’s actually one of the only uses that EPA itself, the US Environmental Protection Agency, has really verified as safe within certain parameters, which is the replacement of Portland cement in concrete with fly ash, which is one type of coal ash. EPA has found that, according to industry specifications regarding the percentage of fly ash that’s used in concrete as a replacement for Portland cement, as long as those specifications are met, EPA deems that as safe use. Another example is the use of FGD, or it’s called flue-gas desulfurization material. It’s also called scrubber sludge. It’s basically the sludge that’s left over from air pollution cleaning devices. That’s a different type of coal, combustion residual. The use of that scrubber sludge waste, or FGD material, in Wallboard has been a use that EPA has also alluded is pretty safe. But from the environmental community standpoint, a lot more research is needed.

The way that the Disposal Rule currently works is if you are someone who wants to reuse waste, you have to meet a four part determination to show that you’re use is a beneficial use. If you can prove that, or if you can make that demonstration, you completely avoid having to comply with any of the regulations for coal ash disposal that are in this rule. We think given that huge exemption, we would like to see a lot more research done to verify that some of these other uses are safe, because there’s a lot of ways that coal ash is being so called “used” that we would question, and there’s really not enough data to show whether they’re being used. That’s certainly something that we’re concerned about moving forward.

Brett Walton: All right. We’ve talked about the 2015 rule and the DC Circuit Court decision as one branch of legal action around coal ash. The other I want to get to, you mentioned earlier was this idea of hydrologically connected, and that’s what brings the coal ash question into touch with groundwater. There have been quite a few lawsuits recently in Federal Appeals Courts about coal ash ponds and trying to make the case that they should be regulated under the Clean Water Act. Can you explain the reasoning why some people think that should be?

Lisa Widawsky Hallowell: Sure. There have been, as you said, a couple of recent cases. Citizens are allowed to enforce certain requirements under the Clean Water Act. The Clean Water Act prohibits the discharge of any pollutant from a point source into navigable waters. Navigable waters are defined as waters of the United States. A citizen group-

Brett Walton: One clarification there. Point forces are generally things that have a pipe into a river, right?

Lisa Widawsky Hallowell: Well, that is the classic example, but the definition of point source is any defined, discreet and … or any discernible defined concrete conveyance. In the definition are the words “any vessel, ditch, tunnel,” there’s a lot of examples right in the definition itself of what a point source could include that’s way beyond an actual pipe. But that’s one of the parts of contention that’s come up in the court. Environmental groups concerned about pollution from coal ash sites have alleged, in a couple of cases, in many cases, that-

Carl Ganter: Hello, everyone. Carl here. A five minute warning, so start to wrap it up. Five more minutes.

Lisa Widawsky Hallowell: All right. There have been several cases where the leaking of coal ash, itt’s pretty straightforward that if you discharge coal ash pollutants from a pipe at an impoundment or a landfill right into a waterway, it’s pretty much undisputed that that’s covered by the Clean Water Act. That’s something that you would need to get a permit for if you want a discharge. That permit would have to set limits on coal ash pollutants as required by the 2015 Clean Water Act rule for power plants. The more nuanced question that has arisen of late is whether the release of pollutants into groundwater that flows directly into surface waters can be similarly covered and would constitute a violation of the Clean Water Act if you don’t have a permit for it. Basically the real question, I think, is if we know that you need a permit and that the Clean Water Act prohibits discharge of pollutants right into the river, if you can release those pollutants right into groundwater that’s a few feet away from the river but we know flows right into the river, can you escape that liability if you’re a utility?

Or from the other perspective, is that something that citizens can challenge as also a Clean Water Act violation, knowing that the pollutants end up in the same place, albeit through groundwater first? There have been a lot of cases on this. Actually at the federal appellate level this year, two cases that were not dealing with coal ash specifically, but were dealing with this issue nonetheless with regard to injection to wells. One in the fourth circuit and one in the ninth circuit, both had held earlier this year that the Clean Water Act liability does extend to discharges of surface waters through this so called hydrologically connection route. But however, very recently, there were two decisions issued in the sixth circuit that were just a few weeks ago that reached the opposite conclusion, holding that leaks from coal ash disposal ponds to surface waters through groundwater didn’t violate the Clean Water Act because the discharge was not direct to surface waters, but had to first pass through groundwater.

The interesting thing was that the word “directly,” or “direct” is not in the statute. It seems, from my perspective, that that requirement was read in in these cases. The other courts in the fourth and ninth circuits had not reached that conclusion and had not read that into, and they argued alternately that it’s clear that this would fill a discharge from the coal ash disposal unit and it went into the navigable water and it didn’t really matter that it went through groundwater first, because it’s clear what the pathway was, so that made it qualify as the conveyance … Rather, that made it the type of discharge that was contemplated by the Act. Where we stand now is there’s a split-

Brett Walton: Okay, go ahead with the split, so where this might go legally.

Lisa Widawsky Hallowell: Yeah, what that means is we’ve got what’s called a split in the circuit. If you live in certain areas of the country, namely the sixth circuit, you’re bound by this sixth circuit decision, and if you live in other parts of the country, the opposite is true. What is going to have to happen eventually is the Supreme Court may have to decide this. Actually both the fourth and ninth circuit opinions, which were the ones that did hold that the Clean Water Act covered hydrological discharge, they’ve both been presented in what’s called a [inaudible 00:26:36] to appeal before the Supreme Court. It’s unclear yet whether the Supreme Court will take on these cases or not.

Brett Walton: What’s at stake if there is an agreement in the courts that coal ash ponds do have a direct connection and should be regulated?

Lisa Widawsky Hallowell: Sure.

Carl Ganter: Okay, one more minute. Wrap up your conversations, and we’ll all come back to group. One more minute. 

Lisa Widawsky Hallowell: If the Supreme Court upholds the decisions in these two cases in the fourth and ninth circuits, that will invalidate these sixth circuit cases that just came up. The Supreme Court’s decision is binding nationwide. If the Supreme Court decides that the Clean Water Act does apply, that would mean that coal ash ponds and landfills throughout the country could be subject to liability under the Clean Water Act for hydrological discharge, and of course if they rule the other way, the same is true for that other holding. It’s going to be very interesting to see what they say. We think it’s absolutely critical that the court does hold that there is Clean Water Act liability, because the waste law really does not cover this type of pollution otherwise. I think the sixth circuit court seems to think that because there is a waste disposal law that covers pollution from coal ash ponds, we didn’t really need … It was duplicative to hold this liability. But that’s really not the case. There’s lots of units that aren’t covered by the Coal Ash Disposal Rule, and it also … monitoring.

Carl Ganter: Carl Ganter here, and great conversations, everybody. Welcome back. Fascinating listening to your comments and the breakout groups. We’ll take just a few seconds to bring us all back to group.

Speakers

Gary Peters

Elected in 2014, Senator Gary Peters represents the State of Michigan in the U.S. Senate. Senator Peters serves on the Senate Armed Services Committee, Senate Commerce, Science, and Transportation Committee, the Senate Homeland Security and Governmental Affairs Committee and the Joint Economic Committee.

Dr. Mona Hanna-Attisha

Dr. Mona Hanna-Attisha is a physician, scientist, and activist who has been called to testify twice before the United States Congress, awarded the Freedom of Expression Courage Award by PEN America, and named one of Time magazine’s 100 Most Influential People in the World.

She’s also the founder and director of the Pediatric Public Health Initiative, a model program to mitigate the impact of the Flint water crisis.

Dr. Christopher Higgins

Christopher P. Higgins is an environmental chemist examining the fate of environmental contaminants in aquatic and terrestrial systems. His research focuses on the movement of contaminants in the environment. In particular, he studies chemical fate and transport in natural and engineered systems as well as bioaccumulation in plants and animals. Contaminants under study in his laboratory include poly- and perfluoroalkyl substances used in stain-repellent fabrics and fire-fighting foams, nanoparticles, wastewater-derived pharmaceuticals and personal care products, trace organic chemicals in urban stormwater, and trace metals.

Dave Dempsey

Dave Dempsey has 35 years experience in environmental policy. He served as environmental advisor to former Michigan Governor James Blanchard and as policy advisor on the staff of the International Joint Commission.  He has also provided policy support to the Michigan Environmental Council and Clean Water Action.  He has authored several books on the Great Lakes and water protection.

Lisa Widawsky Hallowell

Lisa has worked to reduce pollution from coal ash disposal sites in Pennsylvania and nationally since she joined The Environmental Integrity Project in January 2009. She graduated cum laude with a Certificate in Environmental and Natural Resources Law from Lewis & Clark Law School.

Garret Ellison

Michigan environment and Great Lakes reporter with the Grand Rapids Press since 2008. Ellison was announced as the 2017 Richard Milliman Michigan Journalist of the Year in recognition of his work on environmental issues ranging from a bottled water company’s plan to increase its withdrawal of groundwater to the hazards posed by an aging underwater oil pipeline.

Mary Ellen Geist

Mary Ellen Geist is an award-winning broadcast journalist and author who was born and raised in the Detroit area.  She began her career as a broadcast journalist in Northern Michigan where one of her first investigative reports involved the discovery of trichloroethylene in the ground water of a small town. She later won several awards for her investigative reporting on the spraying of the pesticide Malathion in Los Angeles.

Jim Malewitz

Jim Malewitz reports on the environment for Bridge. Based in Lansing, but with plans to scour both peninsulas, he is looking for stories about how public policy, climate change and other phenomena affect the state’s trove of natural resources – all while leaders tout the “Pure Michigan” brand.

Brett Walton

Brett writes about agriculture, energy, infrastructure, and the politics and economics of water in the United States for Circle of Blue. Brett also writes the Federal Water Tap, Circle of Blue’s weekly digest of U.S. government water news. He is the winner of two Society of Environmental Journalists reporting awards, one of the top honors in American environmental journalism: first place for explanatory reporting for a series on septic system pollution in the United States (2016) and third place for beat reporting in a small market (2014).

Host

J. Carl Ganter

J. Carl Ganter is co-founder and director of Circle of Blue, the internationally recognized center for original frontline reporting, research, and analysis on resource issues with a focus on the intersection between water, food, and energy. Carl — an award-winning photojournalist, reporter, and broadcaster — is recognized for developing the keen skills that helped to shape the multimedia journalism era. He received the Rockefeller Foundation’s Centennial Innovation Award (2012).

Exclusive Event Reporting

Minnesota has fought PFAS for years. Here’s how its plan can help Michigan

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FLINT — Gov. Rick Snyder says Michigan is the nation’s…

Infographic: Household Wells in the United States

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Thirteen percent of Americans, some 42 million people, use a household well for their water supply.

In Senate PFAS Hearing, Government Officials Say Regulatory Response Will Take Years

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Officials from multiple federal agencies testified at a U.S. Senate subcommittee hearing.

Michigan's Groundwater Emergency

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Groundwater in Michigan is “compromised and deteriorated.”

Groundwater: The Sixth Great Lake

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Despite its abundance, is groundwater a second-class citizen?

Michigan PFAS by the numbers: How much is unsafe?

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Confusion runs rampant about PFAS dangers. The federal government and states can’t agree on how much is unsafe for states. Here’s a primer on what’s known so far.

Remembering Michigan’s PBB Crisis

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Contamination of the food-supply chain in Michigan in the 1970s was one of the worst mass poisonings in U.S. history. The events still resonate today.

Additional Coverage by our Partners

Stacks of free bottled water sit at Parchment High School. Residents have been advised not to drink the tap water after tests showed it contained PFAS, a group of chemicals used in many products and as a flame retardant. Photo © Jim Malewitz/ Bridge

Monitoring wells stand as silent sentinels on the grounds of a field used as a fire training site at Wurtsmith Air Force Base. Photo © Brett Walton / Circle of Blue

Sticky foam rings a public beach near on Van Etten Lake near the shuttered Wurtsmith Air Force base. State environmental officials said it resembled foam that has tested positive for high levels of toxic perfluoroalkyl and polyfluoroalkyl substances. Photo © Jim Malewit/Bridge

A truck similar to this one will be used to suck up toxic PFAS foam around parts of Oscoda, the Michigan Department of Environmental Quality said. (Photo courtesy of MDEQ)

Confirmed PFAS threats to Michigan water – by Jim Malewitz, Bridge

Michigan’s list of contaminated sites is likely to grow as the state continues to test all public water systems and schools that tap well water.

Map by Bridge – Source: Michigan Department of Environmental Quality

Additional Coverage by Circle of Blue

Congress Passes Defense Spending Bill That Includes Perfluorinated Chemicals Health Study

CDC will guide first-ever national evaluation of drinking water…

New Jersey Sets First Binding State Limits for Perfluorinated Chemicals in Drinking Water

Regulators adopt strictest standards in the nation.

EPA Investigates Chemical Contamination of North Carolina River

Nonstick chemical was found downstream of Chemours’ Fayetteville…

Nonstick Chemicals Slipped Into Water, Causing Health, Environmental, Regulatory Mess

PFASs -- used in clothing, carpets, cookware, and more -- contaminate wells across the United States.

Drinking Water Warning Issued for Nonstick Chemical

Flint lead scandal a factor in stirring action for other contaminants. By…