COUNTY: 4 MAJOR GROUPS TO SUE MIRANT FOR POLLUTION VIOLATIONS

Investigation Reveals Toxic Pollution from Coal Ash Dump Near Wildlife Refuge

WASHINGTON, D.C. – November 19, 2009 – Due to serious concerns about toxic pollution discharged from an unlined coal ash waste dump in suburban Washington, D.C., four environmental groups — Defenders of Wildlife, Sierra Club, Chesapeake Climate Action Network, and Patuxent Riverkeeper – announced today that they intend to sue Mirant MD Ash Management, LLC and Mirant Mid-Atlantic, LLC Corporation for violations of the federal Clean Water Act at the Brandywine Coal Combustion Waste (CCW) Landfill in Prince George’s County, Maryland. The Environmental Integrity Project and the Environmental Law Clinic at the University of Maryland School of Law are acting as co-counsel for the four groups.

Jennifer Peterson, Attorney, Environmental Integrity Project, said: “The TVA spill dramatized the devastation that is caused when coal waste surface impoundments burst their banks.

But slow motion toxic leaks and discharges from so-called “dry” landfills also pose unacceptable risks to the environment and public health.”

The environmental groups claim Mirant is violating the Clean Water Act by failing to comply with the terms of its Clean Water Act permit and by illegally discharging toxic pollutants into Mataponi Creek and its tributaries from outfalls and through leaks in disposal cells. Mirant’s discharges enter Mataponi Creek, which flows through Merkle Wildlife Sanctuary, a unique wildlife refuge in the Patuxent River watershed. Mirant is the target of an enforcement action by Maryland for Clean Water Act violations at its Faulkner CCW Landfill due to groundwater contamination.

Chalk Point Generating Plant, Benedict,MD

Jane F. Barrett, Director of the University of Maryland Environmental Law Clinic, stated that “the citizen suit provision of the Clean Water Act is a critical enforcement tool which, in cases like this one, can be used to supplement federal and state actions by holding polluters accountable and protecting our valuable natural resources.”

Mirant has also failed to submit a required report that describes how the company will eliminate all toxic discharges at the Brandywine CCW Landfill. Mirant routinely discharges selenium above Maryland’s toxic water quality criteria for aquatic life.

Adam Kron, Staff Attorney for Defenders of Wildlife, said: “Selenium and other toxic coal combustion waste pollutants accumulate in animal tissues, threatening a wide range of wildlife from rockfish to ospreys to bald eagles, causing serious respiratory, metabolic, hormonal and physiological damage, or even death. Mirant must take full responsibility for its landfill in order to prevent such harms to Maryland’s waters and wildlife.”

A March 2009 report from the U.S Environmental Protection Agency (EPA) established that disposal of CCW in unlined landfills and surface impoundments is hazardous to human health and poses unacceptably high risks of cancer and diseases of the heart, lung, liver, stomach, and

other organs and can poison nearby aquatic ecosystems and wildlife with bioaccumulative poisons. This contamination can continue for more than 100 years after waste is dumped.

“The Brandywine landfill is just one of hundreds of dangerous ash dumps threatening human health and polluting water all across the country,” Mary Anne Hitt, Deputy Director of the Sierra Club’s Beyond Coal Campaign said. “While we’re doing our best to help clean up the worst offenders, EPA needs to set strong federal standards to safeguard communities everywhere.”

“From cradle to grave, pollution from coal is impacting Maryland’s vulnerable landscape and sensitive areas. It’s time to send a clear message to Mirant that polluting our communities is not acceptable,” says Diana Dascalu-Joffe, Staff Attorney for the Chesapeake Climate Action Network.

Fred Tutman, Patuxent Riverkeeper, said: “Unsafe management of coal waste at the Brandywine landfill poses a threat to the long term health of our constituents, and also to the value of the river as a place for renewal, sustenance, research and investment.”

The Brandywine CCW Landfill contains seven million cubic yards of CCW in multiple, unlined disposal cells. Only the most recent disposal cell, which began operation in 2007, has a liner.

The Maryland Department of the Environment has documented cadmium, manganese, iron, aluminum, sulfates, and total dissolved solids many times over drinking water standards in groundwater beneath the site.

According to EPA, unlined landfills and surface impoundments can leach toxic pollutants like selenium, lead, arsenic, and boron at levels that wreak havoc on aquatic ecosystems and wildlife.

Toxic metals can also be embedded in the sediment at the bottom of rivers and lakes, where they can be very difficult to remove, and poison bottom-dwelling plants and fish.

A copy of the notice of intent letter, as well as related attachments, is available at http://www.environmentalintegrity.org.

ABOUT THE GROUPS

Defenders of Wildlife is dedicated to the protection of all native animals and plants in their natural communities. With more than one million members and activists, Defenders of Wildlife is a leading advocate for innovative solutions to safeguard our wildlife heritage for generations to come. For more information, visit www.defenders.org.

The Sierra Club members and supporters number more than 1.3 million. Inspired by nature, the Sierra Club and its members work together to protect communities and the planet. The Club is America’s oldest, largest and most influential grassroots environmental organization. For moreinformation, go to http://www.sierraclub.org on the Web.

The Chesapeake Climate Action Network (CCAN) is the first grassroots, nonprofit organization dedicated exclusively to fighting global warming in Maryland, Virginia, and Washington, D.C. Our mission is to educate and mobilize citizens of this region in a way that fosters a rapid societal switch away from fossil fuels and toward clean energy and energy-efficient products, thus joining similar efforts worldwide to halt the dangerous trend of global warming.

Patuxent Riverkeeper’s goals are to conserve, protect, and replenish Maryland’s longest and deepest intrastate waterway. Our tools include strategic advocacy, restoration and education to achieve long term sustainability for the ecosystem of the Patuxent River Basin and the people who rely on its future.

The Environmental Integrity Project http://www.environmentalintegrity.org) is a nonpartisan, nonprofit organization established in March of 2002 by former EPA enforcement attorneys to advocate for effective enforcement of environmental laws. EIP has three goals: 1) to provide objective analyses of how the failure to enforce or implement environmental laws increases pollution and affects public health; 2) to hold federal and state agencies, as well as individual corporations, accountable for failing to enforce or comply with environmental laws; and 3) to help local communities obtain the protection of environmental laws.

The Environmental Law Clinic at the University of Maryland School of Law provides pro bono legal services to environmental organizations and other clients concerned about environmental problems in Maryland, as well as issues of national significance that affect the State’s environment. The Clinic’s practice includes advocacy in the areas of litigation, legislation, rulemaking, permitting, counseling, and negotiation.

CONTACT:

Ailis Aaron Wolf, (703) 276-3256 or aaaron@hastingsgroup.com.

Jennifer Peterson, Environmental Integrity Project, (202) 263-4449

Adam Kron, Defenders of Wildlife, (202) 772-3224

Craig Segall, Sierra Club, (202) 548-4597

Diana Dascalu-Joffe, Chesapeake Climate Action Network, (703) 772-2472

Fred Tutman, Patuxent Riverkeeper, (301) 249-8200 Ext. 7

Jane F. Barrett, University of Maryland Environmental Law Clinic, (410) 706-8074

3) What do you see day-to-day that are your biggest concerns to the Health of the waterway?
I see a regulatory ethic that is cracked. People think that we need to just pass good laws and not enforce them. Or we think that if we give a line item to a problem that it will be solved, or that we can see progress if we just work on the symptoms without touching the actual problems. For example expending our energy on restoring watersheds without ceasing the causes that wrecked them in the first place. Are we nuts? On one hand I see the public utterly confused by the political process surrounding the conflicting reports of progress and the notion that all any of us need to do is the stuff that is easiest, like cutting back on lawn fertilizer, installing rain gardens or picking up beer cans at a stream cleanup once a year. Sure these are good things, but they are not solutions. People have lost sight of these water resource issues as truly societal and deeply systemic problems. We wait expectantly each year for report card grades hoping to see an upturn when all we have had is steady downturns for years. We look at the short term fix instead of the long term trend. Meanwhile, I have yet to meet a waterfront landowner who did not think that their own role in the degradation of the river was minimal simply because they love and care about the river personally. The overall sense is that everybody wants to fix what is wrong with the river and nearly everybody thinks it somebody else’s fault or somebody else’s job. I don’t lump people of good faith in the same category with the corporate bad actors. I do not equate a guy with a 40 pound bag of lawn fertile in his garage that he uses once each spring, with the corporate giant profiting from a coal burning power plant who breaks the air quality laws nearly every day. These are different levels of culpability and it is a disservice to tell someone that we can’t blame the willful bad actors without also blaming everyone else at the same time. We are not all in the same boat really, that is a fantasy. Some are trying to commandeer it or sink her. And sure we all have a role to play but some roles are greater than others. We have to help people cut through the nonsense and the doubletalk and the spin and to learn to see exactly what is happening here. People need to see how their precious resources are being spirited away or privatized under their noses and challenge the crazy presumption that we are supposed to take it all in stride or as unavoidable outcomes (i.e. the natural outcomes of property rights). My biggest concern is that people seem to be losing the skills to spot the lies, or to apply their critical reasoning skills to attack deeply imbedded problems and implausible excuses. Many have accepted the biggest falsehood of all, which is the fiction that a pollution establishment worth billions will relinquish its grip on unsustainable practices and non compliance if we just educate them or try to get them to see the light, or continue to ask them for grants to do trash cleanups in our neighborhood. As water quality advocates the challenge is that we seem to be fighting battles just to keep people engaged, informed and focused enough to fight back and get what is rightfully their due. It’s hard to fight for people’s first amendment rights to free speech if half the time (or far less than half the citizens) won’t even stand up and say something on their behalf! The environmental is sick but our ability to deliberate as communities and interested parties have badly withered and need rejuvenation.

4) Do you see signs of hope that the state of the river might be Improved in the future?

I’d like to think so. Waterkeepers are fighting actual on the ground battles instead of arguing over the science. There are some communities and citizens that are doing great things and wining courageous fights. We don’t hear enough about these gains. Meanwhile, the new Obama Executive Order related to the Bay holds some promise and has some real possibilities if carried to its ultimate potential to have the Federal government back the efforts by citizens and others to hold the State and other regulators to their obligations to protect these waterways. It may produce a new governmental culture where we can make terrific changes in the courts, and in other ways to at least slow down the long slide toward water quality oblivion. Right now even diligent regulators operate in a climate of indifference and paper pushing. If we push the right papers and fill in the blanks properly you can get a permit to pollute. My gosh. Yet we have some good policymakers in Maryland who mean well but we need to hold them to some vision or benchmarks for improvement or change otherwise we will just get more of the same in spite of their best intentions. For example, merely the acknowledgement by the new administration that the Federal facilities on our waterways need to clean up their own act and actually comply with the “Clean Water Act” provides the incentive for citizens to push for major reforms and tangible gains. The government can’t do it alone, it will take an informed citizenry with real advocacy skills to overwhelm the advances that special interests have achieved over the rest of us in order to get away with stuff. Steal little, steal big, that’s the standard mode for these others. Our economy for too long has been built on plunder and the natural resources are often a casualty. We fight wars over oil, dump fly ash on people who can’t fight back, blow the tops off mountains to get the coal within, knock down old growth forests to build shopping malls, create government funded slums leaving the occupants without open space, clean water and with high mortality rates, we build urban center next to Wildlife Refuges, while paving and demolishing our coastal areas, filling the waterways with silt and mud-and then offer the bankrupted watermen watermen jobs hanging sheetrock or something. It’s a brutal cartoon where the environmental and human mayhem is like real life vaudeville act, and yet it’s real and the stakes are the biggest ones around. Too many of us think these business interests are just making a living or working for their stockholders but if you follow their deeds and their policies to a natural conclusion anyone can see that some are criminals and some are socio-paths who are all the more dangerous because they look just like the rest of us sometimes. Economic tough times may have given pause in some ways to the terrific tide of waste and despoiling of our waterways. In hard times maybe people will throw away less, find ways to conserve and economize as a result. We have to make do with what we have, and get better value from our scarce resources. We have to advance the idea, the principle that while we have to heal the economy we don’t need to get back to the inflated (and inflationary) growth rates and the status quo of before. Our social and economic policies were unsustainable and so, SURPRISE! So is our environment. These economic setbacks are an opportunity for us to right size and reformulate the way our society deals with its remaining resource wealth. Conversely, our opponents will use these times to leverage more public fear and control so they can grab more for themselves. It’s a battle, with real opponents and real stakes. If anybody things we can fix what’s wrong with our water supply and not make at least somebody angry or inconvenienced in the process then they are deluded.

5) What are your recommended top 3 ways politicians can spur the Improvement of the river?
I don’t accept necessarily that the politicians alone are the cause for the root problems. We do have some ethics problems in some quarters and I think the burden should be very high nowadays on elected officials to conduct themselves in a transparent manner. We need to be quick to censure misconduct and collusion where it exists because it implicates everyone, including those who are innocent of any wrongdoing. Bad apples ruin the whole bunch. I think we as voters and major stakeholders need to hold our elected officials to really stringent stands or ethical conduct and to deliver far sighted environmental thinking. While people often vote for legislators they like personally, the truth is we have some very likeable but awfully vapid legislators at times who have done little or nothing to advance the cause of the environment. Granted it is hard to sanction in a practical way electing people on a single platform such as the environment, but that is a fundamental one. I’ll wager that people who have strong environmental credentials are mostly pretty solid and progressive in most other areas as well. Let’s not elect people based on their fuzzy sympathies or platitudes but for their vision and courage to lead by offering concrete platforms and solutions we can hold them to. We can’t afford to elect by “right think” anymore. Those who are progressive and forward looking on the environment will likely be good problem solvers, and consensus builders. That’s what we need to look for. People who look like us, who don’t give offense and who are simply “electable” are just not good enough. So the environmental movement needs to nurture and mentor new champions toward this aim. We need a new crop of people willing to answer the call to public service who are not just saying the things we like them to say, but instead are capable of governing and who are electable. I think our new President in the White House may have great credentials as a grassroots organizer from earlier in his career. Too many people have overlooked that this President and his personal call to public service reflects a journey from the ground up in terms of basic community service and grassroots activism in his past . That’s where our leadership incubators or the next crop of great leaders should come from. Not privilege and party patronage and special interests, or soft money but by, for and of the people. We need to work really hard to build the present and next generation of leaders and hold them to high and higher standards of statesmanship. We need problem solvers, not nest builders.