LAW OFFICE OF
JOHN M. BARTH
___________________________________________________
P.O. BOX 409 HYGIENE, COLORADO 80533 (303) 774-8868 BARTHLAWOFFICE@GMAIL.COM
February 5, 2018
Via Certified Mail/Return Receipt Requested
Scott Pruitt, Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Washington. D.C. 20460

Doug Benevento, Regional Administrator
U.S. Environmental Protection Agency, Region 8
1595 Wynkoop Street
Denver, Colorado 80202-1129

Todd Parfitt, Director
Wyoming Department of Environmental Quality
200 West 17th Street
Cheyenne, Wyoming 82002
Paul Sukut, Chief Executive Officer and General Manager
Basin Electric Power Cooperative
1717 East Interstate Avenue
Bismarck, North Dakota 58503-0564
Missouri Basin Power Project
1717 East Interstate Avenue
Bismarck, North Dakota 58503-0564
Russell Olson, Chief Executive Officer
Heartland Consumers Power District
432 SE 12th Street
PO Box 248
Madison, South Dakota 57042-0248
Kevin Wailes, Chief Executive Officer
Lincoln Electric System
1040 O Street
PO Box 80869
Lincoln, Nebraska 68501

Wyoming Municipal Power Agency
PO Box 900
4041 UD Hwy 20
Lusk, Wyoming 82225-0900
Western Minnesota Municipal Power Agency
25 NW 2nd Street, Suite 102
Ortonville, Minnesota 56278
Tri-State Generation and Transmission Association
PO Box 33695
Denver, Colorado 80233

Re: Notice of Intent to Sue, Resource Conservation and Recovery Act, 42 U.S.C. §6972
Violations of Coal Combustion Residuals Rule by Owners/Operators of Laramie River Station
To whom it may concern:
Pursuant to 42 U.S.C. § 6972(a)(1)(A) and (b), Sierra Club gives notice to the owners and operators of the
coal ash impoundments at the Laramie River Station (“LRS”) of its intent to file suit for violations of the Resource
Conservation and Recovery Act (“the Act”) and the Coal Combustion Residuals Rule (“the Rule”), 40 C.F.R.
§257.50 et seq., adopted pursuant to the Act. After the expiration of sixty (60) days, as provided in the Act, the
Sierra Club plans to file suit in the United States District Court against the owners/operators of LRS to enforce the
provisions of the Rule and the Act. The owners/operators of LRS are: Basin Electric Power Cooperative, Missouri
Basin Power Project, Wyoming Municipal Power Agency, Heartland Consumers Power District, Western Minnesota

1

 Municipal Power Agency, Lincoln Electric System, and Tri-State Generation and Transmission Association
(referred to hereafter collectively as “owners,” “operators,” and/or “owners/operators.”).
Illegal Failure to Disclose Significant Coal Ash Hazard and Safety Information to the Public
In violation of the express requirements of the Rule, the owners/operators have failed to disclose to the
public essential information about the risks and dangers of its coal ash ponds, dams, impoundments, and/or
structures at the Laramie River Station near Wheatland, Wyoming. Under the Rule, the owners/operators were
required in April of 2017 to publish on their Coal Combustion Residual (“CCR”) website information describing the
harm that will be caused to the surrounding community if the LRS coal ash impoundments, dams, ponds and other
structures fail; contact information for responsible personnel at the Laramie River Station if a coal ash disaster
occurs at LRS; and, other information concerning an emergency response. The LRS owners/operators are denying
the public this essential information by blacking out and omitting key portions the plant’s Emergency Action Plan
(“EAP”). Thereby, the owners/operators are concealing the risks and dangers of their coal ash impoundments,
ponds, dams and structures and undercutting the ability of the public to protect itself from a coal ash disaster if it
occurs. As EPA has explained in the Preamble to the Rule, “the establishment and maintenance of this
information…on a publicly accessible Internet site” is important because citizens need “access to all of the
information necessary to show that the rule has been implemented in accordance with the regulatory requirements.”
80 Federal Register 21,302, 21,426.
Further, there is no basis under the CCR Rule for the LRS owners/operators to withhold information
required to be published on the LRS CCR Compliance website. As the EPA has explained in no uncertain terms,
RCRA, under which the Rule was promulgated, “contains neither provisions that grant facilities the right to
withhold regulatory compliance information from the public, nor provisions that establish any reasonable
expectation that such information will be kept confidential.” 80 Fed. Reg. 21,338-39. To the contrary, section 7004
of the Act explicitly provides that “[p]ublic participation in the …implementation, and enforcement of any
regulation under this chapter shall be provided for, encouraged, and assisted by the Administrator...” 42 U.S.C.
§6974(b),
The Owners/Operators are Open Dumping at Laramie River Station
Because the owners/operators of LRS have violated the Rule by failing to disclose to the public the
required emergency information and the risks from the LRS coal ash impoundments, ponds, dams, and structures,
the owners/operators are jointly and severally liable for committing “open dumping” with respect the plant’s coal
ash impoundments, ponds, dams, and structures. 40 C.F.R. §257.1(a)(2)(“Practices failing to satisfy any of the
criteria in …§§257.50 through 257.107 constitute open dumping, which is prohibited under section 4005 of the
Act.”).
The Laramie River Station Coal Ash Impoundments
Laramie River Station consists of three 570 megawatt coal-based electrical generation units and began
operation in the early 1980’s. LRS is one of the largest consumer-operated, regional, joint power supply ventures in
the United States. Laramie River delivers electricity to two separate electrical grids—Unit 1 is connected to the
eastern grid, while Units 2 and 3 are connected to the western grid. The electricity is sent to substations in
Wyoming, Nebraska, and Colorado. LRS burns sub-bituminous coal from the Powder River Basin to fuel its coal
boilers. The address of the power plant is 347 Grayrocks Road, Wheatland, Wyoming.
Coal combustion produces bottom ash, fly ash, and flue gas desulfurization products, the last being the
result of scrubber operation to remove sulfur dioxide. The coal ash impoundment CCR units have been in operation
since 1980 and consist of five CCR surface impoundments-- three bottom ash ponds and two emergency holding
ponds. The combined total storage capacity of the five ponds is over 3,200 acre-feet of contaminated coal
combustion liquids. The owners of LRS failed to disclose the current volume of materials in the ponds. The volume
of material in the ponds is essential to determining the hazard potential of the CCR units and the area of inundation
in the event of a CCR unit failure. The maximum height of the ash disposal ponds 1 and 2 is 25 feet, while the
height of pond 3 is 50 feet. The maximum height of the two emergency holding ponds is 20 feet. All impoundments
are made of earthen material. The ponds contain CCR that are believed to include some or all of the following

2

 chemical constituents: aluminum, antimony, arsenic, barium, beryllium, boron, chloride, chromium, cobalt, copper,
iron, lead, magnesium, mercury, molybdenum, nickel, selenium, sulfate, and zinc. The ponds may also contain
radioactive materials.
The Ponds Pose a Significant Hazard Risk to Downstream Residences and Features
Under the Rule, the LRS owners/operators were required to determine the hazard potential classification
assessment for the LRS coal ash impoundments. A Significant Hazard Potential coal ash impoundment is “a diked
surface impoundment where failure or mis-operation…can cause economic loss, environmental damage, disruption
of lifeline facilities, or impact other concerns.” 40 C.F.R. §257.53. The owners/operators have classified each coal
ash pond at LRS as having a “significant” hazard rating. LRS Emergency Action Plan (“EAP”), Appendix A.
According to the owners/operators, “[s]ignificant upstream and downstream features which could be affected by a
failure are included on the Hydraulic Shadow Maps included in Appendix A.” EAP at p. 2. However, the referenced
Hydraulic Shadow Maps where not included in the EAP posted to Basin’s CCR website. See,
https://www.basinelectric.com/sites/CMS/files/files/pdf/Coal_ash/lrs-emergency-action-plan-ccr-impoundments.pdf.
“The purpose of the Hydraulic Shadow Map, or inundation map, is to provide a picture of the area that could be
affected by a hypothetical failure of the impoundment to determine who must be notified and/or evacuated during an
emergency and the timeliness to facilitate notification and evacuation.” EAP at p. 9. “The Adjacent Property
Owners map included in Appendix A identifies residences, businesses, bridges, and other structures such as roads,
power lines, sewer, gas and water lines and other infrastructure that could be affected by the failure of the
impoundment.” EAP at p. 9. “Residential areas are located downstream of the LRS Impoundments.” EAP at p. 14.
Again, the LRS owners also failed to produce the Adjacent Property Owners map on its CCR website. Each owner
is responsible for developing and maintaining the EAP. EAP at p. 10.
The LRS plant is located near Wheatland Creek, Uva Ditch, Chugwater Creek, the Laramie River,
Grayrocks Reservoir and Cottonwood Draw. Grayrocks Reservoir and Cottonwood Draw are operated as Wyoming
State Wildlife Areas that provide hunting, fishing, boating, swimming and other recreational opportunities. A coal
ash pond failure poses a public health and ecological risk to these watersheds.
The Coal Combustion Residuals Rule
Effective October 19, 2015, the United States Environmental Protection Agency (“EPA”) published a final
rule to regulate the disposal and storage of coal combustion residuals (“CCR”) as a solid waste under subtitle D of
the Act. 80 Fed. Reg. 21,302, 21,312 (April 17, 2015), as amended by 80 Fed. Reg. 37,988 (July 2, 2015); 40
C.F.R. §257.50 et seq. Under the Act, “[p]ractices failing to satisfy any of the criteria in …§§257.50 through
257.107 constitute open dumping, which is prohibited under section 4005 of the Act.” 40 C.F.R. §257.1(a)(2)
(emphasis added).
A fundamental purpose of the Rule is to provide the public with access to information about coal ash units.
Under 40 C.F.R. §257.107, the LRS owners/operators “must maintain a publicly accessible Internet site (CCR Web
site) containing the information specified in [the Rule]”, “the information required to be posted to the CCR Web site
must be made available to the public for at least five years following the date on which the information was first
posted to the CCR Web site”, and “the information must be posted to the CCR Web site within 30 days of placing
the pertinent information required by §257.105 in the operating record.” The LRS CCR Rule website is found at:
https://www.basinelectric.com/environment/coal-combustion-residuals-ccr-rule-compliance-data-and-information.
The Emergency Action Plan (“EAP”) is among the most important documents that the Rule requires to be
made public and published on the CCR website. Under 40 C.F.R. § 257.107(f)(5), “[t]he owner or operator of a
CCR unit subject to this subpart must place the following information on the owner or operator’s CCR Web site…
(5) The emergency action plan (EAP) specified under §257.105 (f)(6), except that only the most recent EAP must
be maintained on the CCR Web site irrespective of the time requirement specified in paragraph (c) of this section.”
(emphasis added).
Under the Rule, the LRS owners/operators were required by October 17, 2016 to conduct an initial hazard
potential classification assessment for every one the plant’s coal ash impoundments (or CCR units) covered by the

3

 Rule. 40 C.F.R. §§257.73(a)(2) and (f). The LRS owners/operators were required to label a coal ash impoundment
a “significant hazard potential” if the structure is “a diked surface impoundment where failure or misoperation…can cause economic loss, environmental damage, disruption of lifeline facilities, or impact other
concerns.” 40 C.F.R. §§257.53 and 257.73(a)(2).
For every “significant hazard potential” coal ash impoundment, the LRS owners/operators were required to
prepare and publish on their CCR website an Emergency Action Plan by April 17, 2017. 40 C.F.R. §257.73(a)(3). At
a minimum, the Emergency Action Plan must “include a map which delineates the downstream area which would be
affected in the event of a CCR unit failure and a physical description of the CCR unit”; “define responsible persons,
their respective responsibilities, and notification procedures in the event of a safety emergency involving the CCR
unit”; and, “provide contact information of emergency responders.” 40 C.F.R. §§257.73(a)(3)(B)-(D).
The LRS Owners/Operators are Violating the Rule by Failing to Disclose Information in their EAP
The LRS owners/operators have violated, and are continuing to violate, the Rule, including 40 C.F.R.
§§257.107(f)(5), 257.105(f)(6), and 257.73(a)(3). The LRS owners have prepared and published an Emergency
Action Plan that fails to disclose to the public essential information that the LRS owners are required to publish
under the Rule. The LRS owners have failed to publish on their CCR website the Emergency Action Plan required
by the Rule.
Since all five of the LRS coal ash ponds are “significant hazard potential” coal ash impoundments, the LRS
owners/operators were required to publish by April 17, 2017 Emergency Action Plans for those impoundments that
comply with the Rule. On April 17, 2017, the LRS owners published on their website what they label as an
“Emergency Action Plan” for the LRS coal ash impoundments. See,
https://www.basinelectric.com/sites/CMS/files/files/pdf/Coal_ash/lrs-emergency-action-plan-ccr-impoundments.pdf.
The EAP purports to address all five coal ash impoundments at the site and gives each a “significant hazard potential
rating.” However, the EAP fails to contain essential information required by the Rule.
First, the LRS EAP does not “include a map which delineates the downstream area which would be
affected in the event of a CCR unit failure” for any of the five Significant Hazard Potential facilities in violation of
40 C.F.R. §257.73(a)(3)(D). These maps are an essential element of the EAP because they inform the public of the
extent of the risk to the public and natural resources posed by the Significant Hazard Potential coal ash
impoundments. Since the EAP refers to such maps, the LRS owners/operators have apparently prepared such maps
but have hidden the information from the public. See, EAP at Appendix A-5 (referring to Hydraulic Shadow Maps
(inundation maps) which are were not included in LRS’s website posting). The LRS owners/operators provide no
explanation for their blatant failure to comply with their legal obligations to the public under the Rule. RCRA, under
which the Rule was promulgated, “contains neither provisions that grant facilities the right to withhold regulatory
compliance information from the public, nor provisions that establish any reasonable expectation that such
information will be kept confidential.” 80 Fed. Reg. 21,338-39. To the contrary, section 7004 explicitly provides
that “[p]ublic participation in the …implementation, and enforcement of any regulation under this chapter shall be
provided for, encourages, and assisted by the Administrator.” 42 U.S.C. §6974(b). Consequently, the LRS owners
are blatantly violating a national public health and safety law by refusing to make public their inundation maps for
each coal ash impoundment and thereby endangering the public. The LRS owners have violated, and continue to
violate, this requirement on each and every day from April 17, 2017 to date at each of the plant’s five coal ash
impoundments.
Second, the EAP fails to “define responsible persons, their respective responsibilities, and notification
procedures in the event of a safety emergency involving the CCR unit” and fails to “provide contact information of
emergency responders” in violation of 40 C.F.R. §§257.73(a)(3)(B) & (C). The LRS EAP contains a chart of
“Imminent Failure and Potential Failure Notification Flow Chart” in Appendix B of its EAP, but redacts, or blacks
out, the names and phone numbers of all LRS employee-contacts responsible as emergency responders. The LRS
EAP also repeatedly redacts, or blacks out, the phone number for LRS employee emergency responders throughout
the document. EAP cover page (2nd page of document), p. 5, p. 11, and 2 pages of Appendix B. Consequently,
members of the public and the press are unable to identify the names and phone numbers of the responsible
employee emergency responders at LRS. These omissions are intentional violations of the Rule and the Act. They

4

 deprive the public of essential safety information to which all citizens are legally entitled. . The LRS owners have
violated, and continue to violate, this requirement on each and every day from April 17, 2017 to date at each of the
plant’s five coal ash impoundments.
For the safety and wellbeing of the public and the protection of our clean water, the LRS owners/operators
must be required to comply with the Rule and the Act and make the required information public.
Persons Responsible for the Violations
The EAP states that Basin Electric Power Cooperative is the operator of LRS. EAP cover page. The EAP
states that LRS is owned by the Missouri Basin Power Project. EAP cover page. The Missouri Basin Power Project
is owned by Basin Electric Power Cooperative, Heartland Consumers Power District, Lincoln Electric System, TriState Generation and Transmission Association, Western Minnesota Municipal Power Agency, Wyoming Municipal
Power Agency. All of the entities identified above are jointly and severally liable for compliance with the Act and
the Rule. These entities operate in New Mexico, Colorado, Kansas, Wyoming, Nebraska, Minnesota, South Dakota
and possibly other states.
Persons Giving Notice
This 60-day notice letter is being given by Sierra Club, 2101 Webster Street, Suite 1300, Oakland,
California 94612 (415) 977-5500. If you have any questions concerning this letter or the described violations, please
contact the undersigned counsel at 303-774-8868.
Sincerely,
s/ John Barth
John Barth
Attorney at Law
Enclosure
cc: (via certified mail- return receipt requested w/ enclosure)
Luke Esch, Wyoming Department of Environmental Quality, Solid and Hazardous Waste Division Administrator,
200 West 17th Street, Cheyenne, Wyoming 82002.
Corporation Service Company, 1821 Logan Avenue, Cheyenne, Wyoming 82001 (registered agent in Wyoming for
Basin Electric Power Cooperative).
George A. Clarke, 3 East Third Street, Lusk, Wyoming 82225 (registered agent in Wyoming for Wyoming
Municipal Power Agency).
C T Corporation System, 1908 Thomes Avenue, Cheyenne, Wyoming 82001 (registered agent in Wyoming for TriState Generation and Transmission Association).

5