Archive for the ‘Front Porch Blog’ Category

EPA finalizes long-awaited coal ash regulations

Friday, December 19th, 2014 - posted by brian
The failed coal ash pond at Duke Energy's Dan River plant.

The failed coal ash pond at Duke Energy’s Dan River plant.

The day we’ve been waiting for has finally come. Yes it’s Friday, but today was also the U.S. Environmental Protection Agency’s court-imposed deadline to release federal regulations for coal ash storage and disposal.

As expected, the rule it took the EPA five years to finalize is modest at best, falling short of what it takes to truly address the prevalent problems associated with coal ash such as contamination of waterways and drinking water supplies.

Rather than classifying coal ash as the hazardous waste it clearly is, the EPA rule places it under Subtitle D of the Resource Conservation and Recovery Act, the nation’s primary law for regulating solid waste. Other types of waste regulated under Subtitle D include household garbage — you know, banana peels, candy wrappers and the like.

“For the thousands of citizens whose groundwater is no longer safe for consumption due to leaching ponds or whose air is contaminated by fugitive dust, failing to regulate coal ash as hazardous is a slap in the face,” says Amy Adams, Appalachian Voices’ North Carolina campaign coordinator. “While we’re pleased that we finally have federal regulations, they are far from perfect and demand we continue fighting for cleanup of these toxic sites.”

U.S. coal plants produce around 140 million tons of coal ash each year. Much of that is stored near waterways in unlined pits held in place by earthen dams. Even years after coal plants have closed, ponds that have stored toxic coal ash for decades can continue to pollute water and put communities at risk.

In 2012, Appalachian Voices and several partner groups, represented by Earthjustice, sued the EPA in federal court to force the agency to issue a rule. Late last year our coalition reached a settlement holding the EPA to today’s deadline.

According to the EPA, the rule establishes safeguards to protect communities from catastrophic spills, like the Kingston, Tenn., spill in 2008. It was the disaster in Kingston that spurred the agency to act.

But more spills, like the one at Duke Energy’s retired Dan River plant in Eden, N.C., have happened in the time since, representing hundreds of millions of dollars in environmental and economic costs.

To address the threat of another catastrophic failure, the EPA rule calls for the the closure of inactive sites that fail to meet engineering and structural standards, more frequent inspections and monitoring, and restrictions on where coal ash impoundments are located.

The rule also requires water quality monitoring and public disclosure of the results, which should help groups like Appalachian Voices and our community partners better track pollution and take companies to court that fail to stop it. More frequent reports and accurate information coming directly from utilities could be a big boost for efforts to protect clean water, as long as coal plant operators commit to transparency.

But while the regulations set a minimum federal criteria, states are not required to adopt them, develop a permitting program, or submit a program to the EPA for approval. That’s all more of a suggestion, really. So while the EPA says it expects states to be “active partners” in regulating coal ash, well, states unfriendly to the EPA may feel differently. And should states refuse to clean up coal ash pollution or fail meet the new standards, the EPA will not step in to enforce the rule. That job will still fall to citizens who identify the insidious pollution and file lawsuits to correct it.

According to Earthjustice, unsafe disposal of coal ash into the nation’s more than 1,400 coal ash dumps has contaminated more than 200 rivers, lakes, streams and sources of underground drinking water in 37 states. There are 331 high- and significant-hazard coal ash ponds in the country. Many of the highest hazard sites are concentrated in the eastern U.S.

Learn more about our work to clean up coal ash.

Hey North Carolina, New York just banned fracking

Wednesday, December 17th, 2014 - posted by brian
Before rushing into fracking, North Carolina could learn something from New York, which just announced it would ban the practice, citing health concerns and uncertain economic prospects.

Before rushing into fracking, North Carolina should look to New York, which just announced it would ban the practice, citing health concerns and uncertain economic prospects. Photo by Daniel Foster/Creative Commons.

New York’s debate over whether or not to allow fracking came to a close today when Gov. Andrew Cuomo sided with the state’s top public health and environmental officials in calling for a ban on the practice.

The governor’s end-of-year cabinet hearing, where the announcement was made, looked like so many other meetings that often end in disappointment. But this one was exceptional for inserting some much-needed truth into fracking fight that could, just maybe, help other states come to their senses.

During the portion of the meeting on fracking, Joseph Martens, the commissioner of the New York Department of Environmental Conservation, set the stage during a 10-minute presentation that pretty much served as a debunking of the best arguments for fracking. It was clear that Martens had done his homework before concluding that fracking should not be done anywhere in New York.

Just in terms of practicality, Martens told Cuomo and his fellow cabinet members, more than 63 percent of the Marcellus Shale deposits in New York would be off limits under state rules and local zoning. On top of that, dozens of New York towns — most famously the upstate town Dryden — have already approved their own bans on fracking and took their case before the state’s highest court, which ruled in their favor earlier this year.

Following the court’s decision in June, Dryden Town Supervisor Mary Ann Sumne told the New York Times, “I hope our victory serves as an inspiration to people in Pennsylvania, Ohio, Texas, Colorado, New Mexico, Florida, North Carolina, California and elsewhere who are also trying to do what’s right for their own communities.”

Despite the fact that North Carolina’s law prohibits local ordinances that “directly or indirectly” restrict oil and gas drilling operations, towns across the state have approved ordinances or resolutions to discourage or prevent fracking in their limits.

According to Martens, the prospects for fracking in New York are “uncertain at best.” The same could be said of North Carolina, where supporters’ visions of economic grandeur don’t always follow the limitations of the state’s geology.

Martens’ rundown was refreshing for this North Carolinian — it was also a reminder of the disregard and misplaced priorities of many pushing to bring fracking to my beloved state. But New York’s acting health commissioner, Dr. Howard Zucker, who spoke next, might truly be the voice of reason we’re missing in North Carolina.

Zucker, with a stack of reports on fracking’s health impacts in other states piled behind him, said he would not allow his family to drink tap water in an area where fracking took place. The point hit home with Cuomo, who said if Zucker believes fracking could put his children in harm’s way, then no child living in New York should be put in that position.

If no child in New York should be put at risk of contaminated water and the other threats that come with fracking, neither should North Carolina’s kids, nor those living in areas already ravaged by poorly regulated drilling.

Former New York Gov. David Paterson first imposed the state’s moratorium in 2008 while the state Department of Environmental Conservation studied fracking in the years leading up to today’s decision. North Carolina Gov. Pat McCrory and the state General Assembly, on the other hand, have rushed headlong toward fracking while requiring surprisingly little study for a state with no experience regulating it. Drilling could begin in North Carolina as early as this spring.

The latest fumble related to fracking in North Carolina came today too. Just as New York announced its ban, controversial fracking regulations in North Carolina sailed through final review against the recommendations of the Rules Review Commission’s staff attorney, who said Mining and Energy Commission staff emailed her 100 rules that were riddled with errors at 2 a.m. on the day of the deadline.

Mary Maclean Asbill, a senior attorney for the Southern Environmental Law Center, who attended the review told the News & Observer the latest misstep is basically par for the course at this point.

“All of the issues just highlighted how rushed the whole process was,” she said.

Community solar projects expand access to clean energy in the Tennessee Valley and beyond

Tuesday, December 16th, 2014 - posted by guestbloggers

{ Editor’s Note }This post by Taylor Allred, energy policy director for the Southern Alliance for Clean Energy, originally appeared on the organization’s blog. View the post and learn more about the SACE’s work around the region here.

Duck River EMC's Community Solar Project

Duck River EMC’s Community Solar Project

Solar fever is sweeping the nation, and the Southeast is no exception. Every year, more and more people are taking advantage of the most abundant energy resource on Earth by installing solar photovoltaic panels on their roofs. The price of solar panels has dropped dramatically in recent years, and now is a great time to lock in low (or even negative) utility bills and avoid future rate increases.

However, not everyone has the opportunity to take advantage of this solar gold rush. According the the National Renewable Energy Laboratory, about 75 percent of residential rooftops in the U.S. are not suitable for solar panels due to structural, shading, and other constraints. And that doesn’t even account for ownership status (e.g., renters) or financial considerations.

The most promising solution to these obstacles is the rise of community solar projects, which allow individuals to purchase a portion of a larger-scale solar installation that is typically managed by their utility. Fortunately for those of us in the Tennessee Valley, TVA recently announced two exciting new opportunities to help local power companies (LPCs) develop community solar projects.

In addition to overcoming obstacles to residential solar installations, community solar projects offer several other benefits. First, larger-scale installations are more cost-effective thanks to significant economies of scale. The economic benefits extend beyond those who participate, as the projects can drive local development and create jobs. In addition, LPCs can optimize the siting of projects to maximize grid benefits and public outreach goals while increasing their understanding of solar technologies and grid integration of distributed generation.

Community solar is not entirely new to the Tennessee Valley. As we reported previously, Duck River EMC became the first local distributor in TVA’s territory to develop a community solar project. For $600, customers can buy the energy output of half of a panel at the 26 kW solar farm in Shelbyville, Tenn.

A recently released best practice primer can help to guide LPCs in designing community solar projects. The primer was developed by Southern Alliance for Clean Energy, Southern Environmental Law Center, Sierra Club, Appalachian Voices, and Tennessee Environmental Council. You can learn more in the primer about the benefits of community solar and the opportunities available to LPCs in the Tennessee Valley.

If you would like for your local utility to build a community solar project, please make your voice heard and send along the best practice primer. Please let us know if you have any questions about how to make community solar happen in your neck of the woods.

A schizoid rate case and a climate directive in Virginia

Tuesday, December 16th, 2014 - posted by hannah
Virginia ratepayers made their voices heard before important orders by the State Corporation Commission on residential solar fees and electricity rates.

Virginia ratepayers made their voices heard before important orders by the State Corporation Commission on residential solar fees and electricity rates.

Here’s the bad news: Virginia’s State Corporation Commission (SCC) has approved a charge of about $3.50 per kilowatt on Appalachian Power Company customers with solar arrays larger than 10 kilowatts.

But it’s even more disappointing in light of Virginia’s recent explosion in residential solar installations and our state’s opportunity to lead by encouraging efforts that make clean energy affordable.

We’ve covered the “solar standby” charge problem and examined theories about why such “taxes on the sun” are spreading. Regardless of the reasons behind Appalachian Power’s pursuit of the charge, it is now in place and applies to five accounts currently and any customer who installs a new solar system larger than 10 kilowatts in the future. But there’s a more interesting aspect of the SCC’s recent order that’s worth a look.

Elsewhere in the very same ruling, regulators rejected an APCo proposal to raise fixed fees for residential customers that would have had serious consequences for energy use, conservation and renewable energy in the region.

This sort of restructuring spells trouble for advancing technologies like solar, small residential wind and energy efficiency. It’s an issue that’s been popping up recently in rate hearings around the country. In states such as Nevada and Wisconsin, utilities have proposed major changes to the way most customers’ bills are set up in the form of vast increases in fixed monthly fees and cuts to usage-based rates. Imagine being a utility and feeling concerned about how the public views the way you do business. Do you think you might be tempted to announce cuts to rates, while making up the balance from fees that many customers might overlook on their bills? APCo proposed a near doubling of the flat fees their residential basic customers pay from $8.35 to $16.

Public relations aside, it only takes a quick thought exercise to see how these changes would play out for customers in real life: a middle-class family in a mid-size home might not see a difference in their bill at all, with savings on per-unit energy costs negated by higher fixed fees. A family that lives in a large home and uses a lot of electricity each month might see lower bills since the fixed fee makes up a smaller share of their bill. But a small home of a low-income family that uses less energy, perhaps with fewer electronic gadgets and a habit of keeping the thermostat low during colder months, could be stuck with higher bills in spite of lower rates per kilowatt-hour as fixed charges drive up their energy costs.

Appalachian Power spokesperson John Shepelwich speaks to the media about the reasons the  utility pursued a "standby" charge on customers that have gone solar.

Appalachian Power spokesperson John Shepelwich speaks to the media about the reasons the utility pursued a “standby” charge on customers that have gone solar.

Shifting toward higher fees paid by all customers regardless of how much energy they consume and away from usage-based charges has been criticized in other states — not only on grounds of economic injustice but also for the obvious way it undercuts the incentive to conserve energy, and for the less apparent way it can deter investments in clean energy.

Lowering electricity rates fundamentally affects the calculation of whether installing a household solar array makes financial sense, and results in a big reduction in the returns that a solar owner would otherwise expect to receive The SCC found that APCo had not established that the charges were reasonable and rejected the increases, but experts in the region are looking ahead to other methods of rate restructuring utilities might pursue including minimum bills.

The second positive outcome of the APCo case came particularly as a result of representation by the Southern Environmental Law Center and the advocacy of clean energy supporters like you. It is the SCC order on APCo’s long-term resource plan that contains the seeds of future climate progress. In the big picture, it may be the most significant part of all the SCC’s orders from last month: the directive that APCo monitor the development of the EPA standards on carbon from power plants and model different methods to comply.

For regulators to tell a utility with a generation mix that is projected to remain over 80 percent coal-based through 2027 that it must model methods to address carbon pollution is huge. And the way the EPA’s Clean Power Plan is written, options that will truly benefit customers like investing in energy efficiency programs (which are also the lowest-cost options for compliance) should take center stage in the utility’s future plans to reduce its greenhouse gas intensity. It’s due to the engagement of several customers who have gone solar that wrote letters to the SCC, the dozens who commented in favor of a cleaner, more reliable, more affordable energy future for the region, and those who came to Richmond to be heard in person, that our message got through.

Virginians advocate for clean energy outside the state Capitol Building. Photo by Virginia Sierra Club

Virginians advocate for clean energy outside the state Capitol Building. Photo by Virginia Sierra Club

From here, it’s important to do your part to make sure your legislators are aware of these issues. The General Assembly originally approved a bill that authorized solar standby charges because they were portrayed as a tool to right a wrong: utilities used a red herring argument claiming that customers who generate their own solar electricity didn’t pay enough for the services they receive. In other words, in trying to solve a perceived problem presented by the utilities who contend that their freeloading solar customers are being subsidized by the customers who don’t generate clean energy, the legislature and regulators created a weapon to be wielded against a class of customers that by-and-large benefits the system by providing pollution-free energy at some of the year’s peak use times, helping other ratepayers avoid new generation and transmission expenses while cutting pollution.

Meanwhile, last month’s legislative committee hearing on the Clean Power Plan reminds us that most members of the legislature are in the dark about the effects of the fees they approve and the risks that these new charges will change the calculation for constituents in their districts who might otherwise see a much better deal and likely choose a local installer to outfit their home with a solar array. For instance, the infamous hybrid car fee passed in 2013 only to be hurriedly repealed in 2014 — with popular outrage, swift policy reform is impressively easy. And while the SCC has a certain degree of discretion, it’s bound to follow the letter of the law, which we, with help from our legislators, have the power to rewrite.

HBO’s “Saving My Tomorrow” to feature footage from Appalachian Voices

Friday, December 12th, 2014 - posted by Jamie Goodman

savingmytomorrow1

This coming Monday, HBO will premiere an entirely new documentary series that celebrates the children who will inherit the planet and their appreciation of the wonders of the natural world. A lyrical mix of science, animation, and music, “Saving My Tomorrow” is a call from kids to kids to help take care of the planet.

The show premieres Monday, Dec. 15 at 7:00 p.m. on HBO.

Appalachian Voices proudly contributed to the series, providing high-resolution flyover images of mountaintop removal coal mines and coal-fired power plants, as well as beautiful footage of the Appalachian mountains.

savingmytomorrow2

Each episode of “Saving My Tomorrow” will feature kids sharing their thoughts on subjects ranging from endangered animals to climate change, while exploring stories about the plants and animals that are affected.

“Earth is our home. We only have one and if we mess this up… where do we go next? We don’t have another earth right next to us, just in case we lose this one,” says Hippocrates Polemis, an eight-year-old featured in “Saving My Tomorrow.”

The series is a fun and engaging educational program perfect for elementary school children and their families. Check out the trailer:

The series will include readings by Alan Cumming, Tina Fey, Liam Neeson, Susan Sarandon, Neil deGrasse Tyson, Jeffrey Wright and more, as well as an appearance by Pharrell Williams and musical performances by Lennon & Maisy, Ziggy Marley, Elizabeth Mitchell, Jason Mraz, Willie Nelson, Karen O, Pete Seeger, They Might Be Giants and Dan Zanes.

More Information

Coal ash cleanup still contested in North Carolina

Friday, December 5th, 2014 - posted by Sarah Kellogg
 Controversies still surround the environmentally destructive and costly Dan River coal ash spill. Now, as Duke Energy begins cleaning up the most high priority sites, new controversies are emerging. Photo from Duke Energy Flickr.

Controversies still surround the environmentally destructive and costly Dan River coal ash spill. Now, as Duke Energy begins cleaning up the most high priority sites, new controversies are emerging. Photo from Duke Energy Flickr.

In two weeks, the U.S. Environmental Protection Agency will finally release the first-ever rule regulating the storage and disposal of coal ash, a toxic byproduct of burning coal. For years, communities and environmental groups across the country have pushed the EPA to finalize the regulations, and now, due to a court ordered mandate, the rules are expected to be released on Dec. 19.

In the years following the 2008 TVA coal ash spill in Kingston, Tenn., the EPA repeatedly delayed finalizing a coal ash rule, allowing the dangerous waste to sit in unlined landfills and contaminate groundwater at sites across the country. As a result, there have been more coal ash disasters, including the February 2014 spill into the Dan River at Duke Energy’s plant in Eden, N.C. A new study conducted by Wake Forest University research biologist Dennis Lemly puts the cost of the Dan River spill at $300 million.

Spurred by the devastating Dan River spill, enormous public outcry, and a federal criminal investigation into the ties between Duke Energy and the N.C. Department of Environment and Natural Resources, state lawmakers set about writing their own coal ash regulations prior to the EPA rule’s release. The result was not what North Carolinians hoped for.

The Coal Ash Management Act, which became law in September without Gov. Pat McCrory’s signature, only requires the full cleanup of four out of the 14 coal ash storage sites in the state. The fates of the remaining 10, including Belews Creek (home to the the largest coal ash deposits in the state) have been left in the hands of a Coal Ash Commission, which may allow sites to be capped in place, a method of coal ash storage that does not eliminate the possibility of groundwater contamination.

McCrory did not sign the bill because he felt that the Coal Ash Commission was unconstitutional since a majority of its members were appointed by legislators and not the governor. On Nov. 13, McCrory and former governors James Hunt and James Martin sued the General Assembly, stating that the commission has been tasked with carrying out executive branch functions, as well as functions normally overseen by state agencies such as DENR. Speaker of the House Thom Tillis and Senate President Pro Tempore Phil Berger, who are listed as defendants in the case, issued a statement opposing McCrory’s lawsuit as costly and time-consuming.

Despite the weaknesses of the Coal Ash Management Act, the law has already forced Duke Energy to begin cleaning up the coal ash at four high-priority sites, and to submit preliminary cleanup plans and groundwater assessment plans for the remaining 10. But now new controversies are emerging over where the company plans to relocate its waste.

Last month, Duke announced plans to move 2.9 million tons of ash from its Riverbend and Sutton plants to former clay mines in Chatham County and Lee County. Citizens in both counties are upset by the proposal, stating that they feel blindsided and citing the lack of an environmental or health impact study as problematic. In Chatham County, some residents already live near coal ash ponds located at Duke’s Cape Fear plant, which are not currently designated for cleanup.

Duke Energy contends that the clay mines are ideal for coal ash storage because of their close proximity to railways and the added environmental protection of impervious clay. The company says it will put in liners and install groundwater monitoring systems at the sites.

Under the Coal Ash Management Act, millions of tons of coal ash precariously stored along North Carolina’s waterways will have to be moved somewhere. But the unfortunate reality of the law is that many previously unburdened communities and others already burdened by toxic waste dumps may be forced to house some of the ash. Ideally, most of the coal ash will remain on Duke Energy-owned property, but what cannot safely stay on Duke’s land will have to go somewhere. Every North Carolinian has a ton of coal ash to their name, but not every North Carolinian will have to deal with their ton.

In addition to considering new landfill sites, Duke Energy is also looking into the potential of beneficial reuse of coal ash.

If the EPA’s coal ash rule is weak, it will not protect communities from potentially dangerous coal ash landfills or coal ash reuse. Though there are no ideal solutions for the toxic waste, moving forward with the understanding that the substance is indeed hazardous would lead to more safeguards for human health.

If you haven’t already, take a moment to think about why you care about coal ash pollution and explore this topic with others. As North Carolina and the rest of the country move toward coal ash cleanup, it’s more important than ever for us to stand united to demand the safest storage possible.

Nothing to see here

Friday, December 5th, 2014 - posted by eric
The Kentucky Energy and Environment Cabinet's attempts to rebuke critics can't make up for its failure to notice blatant Clean Water Act violations or prosecute coal company misdeeds.

The Kentucky Energy and Environment Cabinet’s attempts to rebuke critics can’t make up for its failure to notice blatant Clean Water Act violations or prosecute coal company misdeeds.

Kentucky’s environmental regulators can’t have it both ways. On one hand, the Kentucky Energy and Environment Cabinet claims it does not have enough funding to do its job. On the other hand, it says it’s doing its job just fine.

Long-standing failures of the cabinet, which regulates coal mines and other polluters, have become even more evident in light of new legal action brought by Appalachian Voices and our partners and a recent court ruling.

In a scathing opinion issued Nov. 24, Franklin Circuit Court Judge Phillip Shepherd rejected two settlements that the cabinet had reached with Frasure Creek Mining for submitting false water pollution reports several years ago. A week before Judge Shepherd’s rulings, we had filed a Notice of Intent to Sue Frasure Creek for again submitting false reports in 2013 and 2014 that again went unnoticed by the cabinet.

Not Just a Matter of Money

For years, despite clear and persistent evidence of problems, the cabinet repeatedly claimed to be fulfilling its duties under the Clean Water Act. But it was ignoring the underlying problems, including potentially illegal water pollution discharges masked by false reporting.

In response to our recent notice that Frasure Creek has perpetrated some 28,000 new violations of the Clean Water Act, the cabinet issued a press release that essentially claimed it has everything under control. The cabinet says it’s focusing on “violations as submitted” on water monitoring reports, ignoring the fact that those reports are false or could even be fraud. The release goes on to defend the cabinet’s settlements with Frasure Creek — the ones later thrown out by Judge Shepherd — and said the cabinet had been looking into Frasure Creek’s more recent violations:

The Division of Enforcement within the Cabinet has been monitoring compliance with the April 13, 2013 Agreed Order with Frasure Creek and initiated an internal compliance review in January 2014 that has identified violations as submitted on DMRs [Discharge Monitoring Reports] to the agency. Administrative action on those violations is ongoing and is pending within the agency.

Seeking to understand the validity of these claims, our lawyers submitted a formal request for the information on the cabinet’s “internal compliance review.”

In a bold showing of its own incompetence, the cabinet asked us to clarify what we meant by “[v]iolations ‘mentioned in’ the press release.” It appeared that they did not even know what they were referring to in their own press release.

Once we clarified our request, we received this convoluted response:

The phrase ‘internal compliance review’ that was used in the November 17, 2014 press release is a term used to describe the primary function of staff in the Compliance and Operations Branch of the Division of Enforcement (DENF)…. The phrase does not encompass a specific period of time with dates certain for beginning and ending the compliance process, but it is used within DENF to refer to any ongoing review. With respect to Frasure Creek, our compliance review is ongoing and underway at this time, but it has not progressed to the point where NOVs [Notices Of Violation] have been issued or referrals for enforcement action have been generated.

In plain English, the cabinet’s response essentially says it has been looking at Frasure Creek’s violations, but officials either haven’t written anything down about them yet or, if they have written anything down, they refuse to disclose it. So, just like past claims that the cabinet is doing its job, this response is empty.

The fact that the agency is strapped for cash has never been in question — even Judge Shepherd agrees. As he stated in his recent ruling:

Commissioner Scott further testified that the cabinet has been subjected to a series of major budget cuts during the last 10 years that have drastically and adversely affected the ability of the cabinet to do its job in implementing the Clean Water Act.

[T]he record in this case makes it abundantly clear that the Cabinet simply lacks the personnel and budget to effectively investigate and enforce these requirements of law.

But it’s not a lack of funding keeping the cabinet from effectively enforcing laws as much as a lack of will.

You would think that if the cabinet truly were intent on protecting the environment, they would have punished Frasure Creek to make an example of the company, rather than wasting taxpayer dollars trying to prevent citizen involvement in this case. You would also think that the cabinet wouldn’t spend its limited resources on unsuccessful legal challenges to the Environmental Protection Agency’s guidance on conductivity pollution from coal mines, or weakening water quality standards for selenium, a common coal mining pollutant.

Brown water at a Frasure Creek Mine. This is one of the discharge points that the company submitted false data for.

Brown water at a Frasure Creek Mine. This is one of the discharge points that the company submitted false data for.

The cabinet serves at the pleasure of Gov. Steve Beshear, whose strong pro-coal attitude is without doubt. In one State of the State address, Beshear went so far as to say, “Washington bureaucrats continue to try to impose arbitrary and unreasonable regulations on the mining of coal. And to them I say, ‘Get off our backs!’”

When elected officials are beholden to a single industry, as many are in Central Appalachia, it’s no surprise that regulators would be easy on that industry. But the level of corporate influence in Kentucky is out of control. Coal companies should not be able to flout the law without fear of serious prosecution. And whether the bosses like it or not, the cabinet still has the legal duty to uphold the Clean Water Act.

Could Criminal Charges Be in Store for Frasure Creek?

The cabinet and other Kentucky officials have generally ignored or dismissed the possibility that the false reporting was intentional fraud. But recent cases of laboratory fraud in West Virginia make criminal prosecution seem more feasible. One case involved discharges from coal mines where a lab employee was collecting water samples from a “honey hole,” a spot known to have good water quality, rather than from the actual pollution discharges. In another, a contract employee was reusing data from previous water monitoring reports because they had failed to pay their laboratory.

In a statement that indicates a criminal investigation should ensue, Judge Shepherd wrote:

The conditions observed by the cabinet’s inspectors during the performance audit of Frasure Creeks’ so-called “laboratory” demonstrated either a plan or scheme to submit fraudulent information in the DMRs or incompetence so staggering as to defy belief.

Kentucky Attorney General and gubernatorial hopeful Jack Conway has vowed to look into the new Frasure Creek violations. But several years ago, his team looked into the previous violations and told reporter Ronnie Ellis that they couldn’t find anything “that rises to the level of intent or criminal fraud that’s ready to be prosecuted.”

The cabinet’s dismissive attitude toward the seriousness of environmental problems in Kentucky is unsurprising given the state’s political climate, not to mention the fact that the Frasure Creek cases expose the agency’s utter incompetence. But the jig is up. It’s time for the cabinet to either start doing its job or step aside and let the EPA do it instead.

What will Obama’s legacy be on mountaintop removal?

Wednesday, December 3rd, 2014 - posted by thom
After six years of the Obama presidency, mountaintop removal is still putting communities are at risk, leading many to wonder what his environmental legacy will be.

After six years of the Obama presidency, mountaintop removal continues to put Appalachian communities at risk, leading many to wonder what his legacy on the issue will be.

The Obama administration has taken steps to limit mountaintop removal coal mining pollution in Appalachia. The president and agency officials have also made quite a few promises. But mountaintop removal continues, so what have they actually done?

The Alliance for Appalachia, a coalition of groups including Appalachian Voices, just released a Grassroots Progress Report examining the administration’s successes and shortfalls in dealing with mountaintop removal. There have been successes, to be sure, but as the report clearly demonstrates, there have been many failures.

Large scale surface coal mining is still a huge problem in Central Appalachia. Although the pace has slowed due to the declining coal economy, many new permits are issued every year. In 2013 Virginia issued 9 new surface mining permits and 2 acreage expansions, West Virginia issued 25 new permits, and Kentucky issued 30. Only Tennessee issued no new permits. - Grassroots Progress Report

The report covers not only the scale of ongoing mining, but paints a clear picture of the costs that mountaintop removal continues to have on Appalachian communities. The poor economic outcomes and human health problems associated with mountaintop removal have not improved over the past six years. These issues are closely linked, and neither can improve without action from the White House.

The White House has already made commitments. A 2009 Memorandum of Understanding, signed by all of the relevant regulatory agencies, outlined a series of actions the administration was prepared to take to deal with mountaintop removal. The Alliance report goes through those commitments one by one, pointing out the shortcomings of the actions taken, and the failure of the administration to take further, stronger actions.

The report is not simply a list of grievances, however. There are four policy recommendations as well.

1) a Selenium Standard to ensure that citizens maintain the ability to test for selenium pollution in their own water,
2) a strong Conductivity Rule based on scientific research US EPA has already conducted because we, and our federal agencies, know that high conductivity can be a key measure of dangerous water,
3) a Stream Protection Rule that preserves a strong stream buffer zone requirement so that mining waste can no longer be dumped into our streams, and
4) a strong Minefill Rule to address the currently unregulated dumping of coal burning waste into abandoned mine sites.

If you’re interested in what the Obama administration has and has not done in dealing with mountaintop removal coal mining in Appalachia, take a moment to read the one-page summary or the full report.

Kentucky court sides with citizens and environment

Tuesday, December 2nd, 2014 - posted by eric

Viewed through a swing set on a nearby resident’s yard, this is one of Frasure Creek Mining’s many valley fills at their numerous Mountain Top Removal coal mines.

Last week, Appalachian Voices and our partner organizations won a major victory in the Kentucky courts when a judge overturned two slap-on-the-wrist settlements that the Kentucky Energy and Environment Cabinet had reached with Frasure Creek Mining a few years ago.

These cases began in 2010, when we uncovered blatantly false water monitoring reports that Frasure Creek was submitting to state regulators. The judge’s decision comes just one week after Appalachian Voices and our partners filed a 60-day Notice of Intent to Sue Frasure Creek for returning to their practice of submitting hundreds of false water monitoring reports called Discharge Monitoring Reports or DMRs.

Appalachian Voices is joined in these efforts by Kentuckians For The Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance, jointly represented by Mary Cromer of Appalachian Citizens’ Law Center, Lauren Waterworth and the Pace University Environmental Litigation Clinic.

Franklin County Circuit Judge Phillip Shepherd’s opinion is scathing and in many places simply speaks for itself:

The Cabinet took the position that it did not have sufficient evidence to support a claim of intentional submissions of knowingly false data, or fraud, by the Defendant or its contract lab…. The Cabinet took this position notwithstanding… that the signatures of the DMRs were often dated prior to the sampling that was being reported, and that multiple DMRs appear to be simply photocopies of prior reports without any evidence that actual sampling took place. The conditions observed by the Cabinet’s inspectors during the performance audit of Frasure Creeks’ so-called “laboratory” demonstrated either a plan or scheme to submit fraudulent information in the DMRs or incompetence so staggering as to defy belief. [Emphasis added]

The opinion goes on to make several other very important points:

The Cabinet chose to limit its investigation to reporting errors…, and not to investigate substantive pollution violations though there were indications of such violations

The integrity of the regulatory process is based on the accurate reporting of monitoring data. If the Cabinet suspects pollution violations but only investigates and assesses penalties for administrative reporting violations, the Cabinet creates incentives for inaccurate reporting or failing to report as opposed to honest reporting that reveals pollution violations.

The Court finds that the economic benefit realized by Frasure Creek in using a substandard laboratory with systematic problems in its DMRs, far exceeds the civil penalty agreed to by the Cabinet.

When one company so systematically subverts the requirements of law, it not only jeopardizes environmental protection on the affected permits, it creates a regulatory climate in which the Cabinet sends the message that cheating pays. [Emphasis added]

[T]he record in this case makes it abundantly clear that the Cabinet simply lacks the personnel and budget to effectively investigate and enforce these requirements of law. [Emphasis added]

Valley fill and pond at a Frasure Creek Mining MTR site.

Valley fill and pond at a Frasure Creek Mining MTR site.

Judge Shepherd actually issued two rulings, one on each of the two cases against Frasure Creek that were before him. The first case was based on the false water monitoring reports that we uncovered in 2010. The cabinet entered a settlement with Frasure Creek with miniscule fines compared to what is allowed under the Clean Water Act. We then challenged that weak settlement in court. In last week’s ruling, the judge threw out the settlement because it is not “fair, reasonable or in the public interest”.

The second case was based on pollution problems that became evident once Frasure Creek’s false reporting subsided. We intervened in that case and were made full parties to an administrative case that the Cabinet brought against the company (though the Cabinet only brought this case because we had already filed a Notice of Intent to Sue for pollution problems in question). Even though we were full parties to the case, the Cabinet and Frasure Creek reached another sweetheart settlement without our involvement. Judge Shepherd found this had violated our due process rights and threw out the settlement, sending the case back to administrative court.

Both of these decisions could be appealed, and since previous settlements were simply thrown out, the actual violations are still unresolved. We will have to wait and see how these outstanding issues play out. Nonetheless, this is still a great step forward, and a great vindication of citizens’ right to protect their environment.

DENR deserves an environmental leader to replace John Skvarla

Tuesday, December 2nd, 2014 - posted by brian
John Skvarla, the embattled secretary of DENR, is leaving the agency to lead the state Commerce Department.

John Skvarla, the embattled secretary of DENR, is leaving the agency to lead the state Commerce Department.

After a tumultuous two years as secretary of the Department of Environment and Natural Resources, John Skvarla is stepping over to lead the state’s Commerce Department. Skvarla will replace Secretary of Commerce Sharon Decker, who is leaving her post to join a digital media company.

Environmental groups, concerned citizens and prominent media outlets have been critical of Skvarla throughout his tenure, and unsurprisingly so — he has expressed doubt over whether oil is a non-renewable resource claiming, “There is a lot of different scientific opinion on that,” and he questions the overwhelming scientific consensus on climate change.

After assuming his position, Skvarla rewrote DENR’s mission statement to be in the service of industries in North Carolina. Under his watch, information related to climate change was removed from the agency’s website, and the department was reorganized and reduced to nearly inept levels.

READ MORE: DENR found critics and praise under Skvarla

By any measure, Skvarla is committed to being business-friendly. Responding to an op-ed by Appalachian Voices’ Amy Adams in the News & Observer last December, he called DENR a “customer-friendly juggernaut.” But many saw Skvarla as being too cozy with companies like Duke Energy. A federal grand jury is still investigating ties between DENR and the company responsible for the Dan River coal ash spill.

While this announcement should engender optimism in the North Carolina environmental community, that hopefulness is tempered by trepidation over who will take over the position, and concern that he could be replaced by an even more extreme and environmentally detrimental successor.

There is no word on who will replace Skvarla yet, but Gov. McCrory says he is interviewing candidates and plans to appoint a new secretary later this month. Here’s to hoping he or she is the environmental leader DENR deserves and North Carolina desperately needs.

A statement from Appalachian Voices North Carolina Campaign Coordinator Amy Adams:

John Skvarla ushered in an era of regressive environmental policies and procedures that placed industry over the needs of the environment and people. It is our sincere hope that his departure from DENR will allow the return of accountability and reason to the agency.

Gov. McCrory must choose a leader who will balance real environmental protection and industry growth without the wholesale abandonment of either. The goal of the new DENR secretary should be to restore the mission and integrity of the department by prioritizing environmental protection.

We look forward to working with someone who will reconsider Skvarla’s industry-first approach, which repeatedly put North Carolina’s natural resources as risk as exemplified by the handling of Duke Energy’s coal ash contamination.