A Utah Power Plant’s Scheme To Circumvent The Clean Water Act

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Near the Huntington Power Plant, about 110 miles south east of Salt Lake City, Utah, there is a farm. It’s a peculiar farm, according to Richard Webster, a senior attorney with the nonprofit law firm Public Justice, because it contains no crops, no animals, and no harvesting machinery. Save for a few patches of grass and some irrigation equipment, there’s little to distinguish the parcel of land as a farm at all.

That’s because, according to a Notice of Intent to Sue issued last week by HEAL Utah and the Sierra Club, the farm isn’t used as a working farm. It’s a fake farm, irrigated with wastewater from coal ash landfills, meant to help the Huntington plant, owned by PacifiCorp, avoid treating its polluted water. In circumventing those regulations, Webster and other environmental groups claim, the Huntington plant has been contaminating nearby water sources with millions of tons of coal ash for years.

“This whole thing is designed as an elaborate scheme to circumvent the Clean Water Act,” Webster told ThinkProgress. “What they’re essentially doing is taking water that is highly toxic to plants and using it for irrigation.”

According to Lindsay Beebe, a local organizer with the Sierra Club, the investigation into the Huntington plant’s contamination began when the power plant withdrew a wastewater permit that they had previously been using, which had allowed the plant to discharge its waste into the Huntington Creek, which runs adjacent to the power plant.

“That was a red flag,” Beebe told ThinkProgress, “because they had a permit to have runoff from their plant site run into Huntington [Creek], and it indicated they were no longer doing that anymore.”

After looking into the site’s records and visiting the plant, it became clear to the environmental groups investigating the plant that PacifiCorp was merely shifting its contaminated waste to different places around the site — not dealing with the contaminated water in a manner in keeping with Clean Water Act regulations. Beginning around 2007, according to Webster, the Huntington plant began intercepting the flow from two streams that drain the site’s landfills, which include waste from the plant like coal ash, a toxic byproduct created when coal is burned for power. The plant then diverted those polluted streams into a holding pond, from which irrigation water for the plant’s farm is drawn.

Essentially, Webster said, by diverting the polluted streams to a holding pond and spraying that water over a farm, the plant avoids the permits — and expensive pollution treatment — that would be required under the Clean Water Act, since Huntington Creek is listed as an impaired waterway.

“Because the creek is impaired, they would have to treat the wastewater to quite a high standard,” Webster said. But spraying the polluted water on a farm doesn’t make the pollution go away, Webster added.

“They just keep shifting it around the place, but in the end the pollution is getting into the stream by hook or by crook,” he said.

According to the notice, a 2003 report prepared by PacifiCorp noted that groundwater flows from the area beneath the farm to Huntington Creek, raising concern that contamination on the farm could eventually end up in the creek. The company’s own testing also shows elevated levels of contaminants like boron and mercury in the ground water near the on-site landfills, which are unlined, as well as adjacent to the plant’s farm. According to the notice, levels of contamination have increased steadily between 2003 and 2014.

“What we know, from the company’s own testing of test wells, is that high levels of contamination indicators, like boron and mercury, are all present at really elevated levels on-site,” Beebe said. “We’re hoping the state will undertake an investigation into the impact of the contamination that is well known on the surrounding ecosystem and waterways.”

Spraying waste products onto a farm, in order to disperse them, is not unheard of. Concentrated animal feeding operations (CAFOs) often use this technique to help dispose of the animal waste created on the farms, leading to some concern about groundwater contamination when animal waste is applied in excess. According to Webster, this is the first time he has seen this technique used at a power plant.

“Companies try everything they can to escape the Clean Water Act, and that seems pretty apparent here,” Jack Tuholske, a practicing environmental attorney not involved with the case and current director of the Water Justice Program at the Vermont Law School, told ThinkProgress. “They’re trying to create a loophole to irrigate, and it poses some serious issues of a company trying to avoid its responsibility to protect waters from pollution.”

PacifiCorp denies the allegations, claiming that the notice’s conclusions were based on false information.

“Concerns raised in the letter are issues that are available in the public records, and were reported by PacifiCorp to the Utah Department of Environmental Quality,” the company said in a prepared statement emailed to ThinkProgress. “These issues have been addressed or are currently being addressed with the oversight of the Utah Department of Environmental Quality. PacifiCorp continues to ensure that Huntington plant remains in compliance with the recently finalized coal combustion residual rules and all requirements of the Clean Water Act.”

The notice also highlights other issues with the plant, including unpermitted discharge directly into Huntington Creek, as well as a poorly-managed coal storage pile that has been discharging pollutants into the creek. PacifiCorp has 60 days to respond to the notice; if they fail to respond, Webster said, the groups will file a lawsuit in federal court.

“Instead of moving the deck chairs around on the Titanic, it’s time to start doing something real,” Webster said. “The question is not if they have to clean it up, it’s when. They really may as well bite the bullet and clean it up now, as opposed to continuing to make the problem worse and building up more liability for their shareholders.”