The Front Porch Blog

Higher Fines For Big Coal, More Secrecy From The Kentucky Energy And Environment Cabinet

Wednesday, September 21st, 2011 | Posted by Erin Savage | 6 Comments

On September 14th, a conference was held with Hearing Officer Blanton in the Office of Administrative Hearing case brought by the Kentucky Energy and Environment Cabinet against Nally & Hamilton. The conference determined whether Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper, and Waterkeeper Alliance, represented by Natural Resources Defense Council attorneys, may continue with legal proceedings as intervenors in the case. Unfortunately for Appalachian Voices and the citizens of Kentucky, the results of the hearing will allow the Cabinet to continue making deals with Nally & Hamilton behind closed doors.

This case is the Cabinet’s response to the Notice of Intent to sue Nally & Hamilton for 12,000 violations of the Clean Water Act, filed in March 2011 by Appalachian Voices and its partners. To address the violations identified by Appalachian Voices, the Cabinet settled with Nally & Hamilton for $507,000 in fines, topping the previous record-setting fines issued in Appalachian Voices’ other on-going cases against big coal in which Frasure Creek and ICG coal companies were fined $310,000 and $350,000, respectively.

Though these fines represent a great step toward holding coal companies accountable for the pollution they create, the fines are still insufficient. Under Kentucky law, Nally & Hamilton could be fined as much as $300 million for the 12,000 violations. The recognition that the Cabinet consistently does not adequately enforce the law is one reason Appalachian Voices and its partners stepped in as intervenors in the Cabinet’s case. Once the Cabinet and Nally & Hamilton proposed a token settlement in the case they then filed a motion for a continuance. In the conference, the Hearing Officer granted the motion for continuance, based on his determination that he did not have authority to require more discovery in our case.

Those of you without a legal degree are probably wondering what all of this means. I’ll do my best to explain – in short, the Cabinet continues to shield the coal companies, without adequate prosecution. The continuance effectively halts legal proceedings – in this case, it halts discovery, or our ability to request further documentation and other evidence from Nally & Hamilton and the Cabinet, which would likely strengthen and clarify our case. We will still be allowed to submit comments on the Agreed Order between the Cabinet and Nally & Hamilton before the order is sent to the Cabinet Secretary for review.

Besides filing the motion for continuance, the Cabinet has attempted to undermine our involvement in other ways as well. The Cabinet failed to respond to any of our discovery requests, despite the responses being due in August. Because of this, we have been unable to determine the facts the Cabinet considered when entering into the settlement with Nally & Hamilton. We do not know how fines were determined, what violations were identified, or how thorough an investigation was conducted.

The Clean Water Act violations that were identified indicate that pollution is being under reported and inaccurately reported. This improper reporting harms Kentucky’s waterways and the health of Kentucky’s citizens. The Cabinet failed to identify most of these violations until they were uncovered by Appalachian Voices. Despite the Hearing Officer’s request to the Cabinet and Nally that they include Appalachian Voices and its partners in the settlement negotiations, the Cabinet completed a closed-door settlement with Nally & Hamilton and is attempting to prevent further action by us. The current settlement provides a relatively low monetary penalty, does not provide for true stipulated penalties for future violations, ignores the potential of intentional fraud, and claims to resolve Nally’s liability for all previous violations of “the same type” despite there being no evidence the Cabinet bothered to identify different types of violations.

It is obvious the Cabinet is taking the side of big coal in this case. The settlement clearly does not provide for effective, ongoing protection of the people of Kentucky from corporate coal abuses. Kentucky citizens deserve better than this from their state officials.

Excel Mining Addresses Pike County Residents’ Flaming Well With A Solution Other Than Just Drilling More Contaminated Wells

Wednesday, September 21st, 2011 | Posted by Erin Savage | No Comments

In the end of July, Appalachian Voices was contacted by Ted Withrow of Kentuckians for the Commonwealth, who reported a family in rural Pike County, Kentucky, with possible methane contamination of their drinking water well, as indicated by flames shooting more than a foot out of the top of the well. The fire had been reported to local media by friends of the family. The contamination was believed to be the result of underground mining activities by the nearby Excel Number 2 Mine. As we looked into this case further to see how we might help, we realized the problem was more wide-spread and long-term than we originally thought.

Appalachian Voices initially provided heavy metal testing for four families – the Howard family, whose well was on fire, and three nearby families. Next, through the generous donation of 30,000 bottles of water from Keeper Springs Natural Spring Water and Nestle Pure Life Purified Water, KFTC and Appalachian Voices were able to provide safe drinking water to each affected family – 13 families in total.

Upon delivery of the water, we spoke with multiple affected families and collected additional water samples for volatile organic compound testing. We learned that some families had already been purchasing bottled drinking water for 8 years. In a country where we often assume our access to clean drinking water is a right, it was astonishing to realize that this right had been stripped from these families for so long. The families reported recent health problems, including hair loss, skin rashes, and burning sensations while showering. Several families also reported sounds of explosions and rocks falling underneath their homes. Pontiki Coal (an associate of Excel Mining, both subsidiaries of Alliance Resource Partners) reported operating an underground coal mine beneath these homes between 1985 and 1987. We heard anecdotal reports from the residents of recent underground slurry injection, a common use for abandoned underground mines, in the immediate area. The site of the coal waste injection was allegedly far from the road and difficult to relocate, as it may have been covered with brush by heavy machinery. Appalachian Voices is continuing to investigate the possibility of slurry injection in the area, though potentially illegal, unpermitted injection would be difficult to verify after the fact.

We learned of an ongoing history between the families and Pontiki coal. The Howard family had two wells drilled by Pontiki Coal. The first well was determined to be unusable and eventually exploded, burning down the pump house on May 1, 2011. Pontiki Coal had drilled new wells for at least two other families, but these wells were also determined to be unusable by the families. Following the well explosion, Pontiki Coal wanted to cap the burning well, but the family initially refused, fearing this would increase the chance of a methane explosion at their home. The well was tested for methane by Pike County Emergency Management, Mine Safety and Health Administration (MSHA), Kentucky Division of Mine Reclamation and Enforcement (DMRE), and Pontiki Coal on May 3rd and May 10th, 2011, with results ranging widely, from 9.0% to 92.2% methane. The Kentucky Energy and Environment Cabinet tested the composition of the gas emitting from the well and determined it to be similar to that of coal bed methane, a form of natural gas from coal beds, indicating that the gas was likely caused by mining activity. The coal seam in this area is also known for high methane concentrations.

Of the four wells tested for heavy metals by Appalachian Voices and KFTC, two came back with elevated levels of iron and manganese – the levels were above the EPA secondary maximum contaminant levels for drinking water. Not surprisingly, manganese and iron are two metals commonly associated with water pollution from coal mining. The Kentucky Energy and Environment Cabinet also inspected and tested several wells. The Cabinet declared the burning well “mine impacted” due to the methane presence. The Cabinet’s inspection also indicated elevated iron and manganese levels in the Howard’s well, but sulfate levels below those commonly found in mine impacted water. The Cabinet tested the wells of at least three other families for heavy metals. Though they found elevated levels of iron and manganese at a second home and elevated manganese levels at a third home, neither of these wells were declared mine impacted, apparently because the wells contained neither methane nor sufficiently high sulfate levels, nor were they on fire.

Despite only one well being declared mine impacted, it appears all families will soon receive a permanent water solution. With assistance from Excel Mining, the families should be able to connect to Martin County water lines. Though the families live in Pike County, the Martin County lines are closer to the homes – approximately 1.1 miles. Martin County Judge Executive Kelly Callihan met with Excel Mining representatives, persuading the company to pay for the water line extension and water meters. The families will have to pay for lines from the main meter to their homes. Shane Watts, General Manager for Excel, said, “We’re just trying to be good neighbors.” While we thank Excel Mining for addressing this issue, we are disappointed it took intense media coverage of the flaming well and the water donation before they found a permanent solution. According to Ronnie Ellis’s story, neither the families nor the Department of Natural Resources have received any notice of the pending water line extension or funding for the project. Appalachian Voices will continue to monitor this situation to be sure that a permanent solution is implemented. In the words of affected resident, Denise Howard, “When I see it running through my faucets, I’ll believe it.”

Big Coal’s Watergate Hearing Wrap Up

Wednesday, September 7th, 2011 | Posted by Erin Savage | No Comments

The hearing against the Kentucky Energy and Environment Cabinet, and ICG and Frasure Creek coal companies wrapped up last Friday. Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper, and Waterkeeper Alliance intervened in the settlement between the Cabinet and the coal companies, arguing the settlement was not fair, reasonable or in the public interest. Appalachian Voices has identified more than 20,000 Clean Water Act (CWA) violations committed by the two companies between 2008 and 2009. Additional violations have been identified in 2011, but are the subject of a separate Notice of Intent to sue. Under the CWA, the violations could result in fines of more than $740 million dollars. The Cabinet originally fined the two companies a total of $1.25 million, but negotiated a consent judgment of $660,000 — $310,000 for Frasure Creek and $350,000 for ICG. These fines represent less than 1% of the total possible fines.

Wednesday, the first day of the hearing, began with opening statements, in which our attorney, Mary Cromer, argued the Cabinet’s fines were insufficient and did not account for the financial benefit gained by the companies through inaccurate reporting. The types of violations identified by Appalachian Voices included repeating data in reports from different quarters, and exceeding pollution limits. State employees, Jeff Cummins, Assistant Director of the Division of Environmental Protection, and R. Bruce Scott, Commissioner of Environmental Protection, were questioned to determine how violations were identified and counted, as well as how fines were assessed. Cabinet attorneys objected to many of the questions regarding the Cabinet’s deliberative process. Judge Shepherd, a former Cabinet Secretary, rejected most of the objections, stating that an understanding of the process was necessary to determine whether fines were adequate, and would probably help the Cabinet’s case.

The Cabinet employees reported that they did not know the total number of pollution discharges held between the two coal companies. Mark Cleland, Environmental Control Manager, attributed some of the violations to transcription and administrative errors. Recognizing the implications of inaccurate discharge monitoring reports (DMRs), Judge Shepherd later asked Scott, without accurate data, “how will the cabinet ever determine if there is a water pollution violation?”

On Thursday, the opposing counsel requested summary judgment from Judge Shepherd, but the judge declined. Tom Gabbard, manager of the Cabinet’s Compliance and Technical Assistance branch, was called as a witness. Gabbard testified to inspections of three sediment ponds. Gabbard reported high conductivity readings, as well as red-orange precipitate, indicative of acid-mine drainage, extending as far as 300 feet down a stream exiting one of the ponds. While the Cabinet’s settlement does require corrective action plans, Gabbard stated that, besides remedial action, the plans do not require anything further than what is already required under existing law.

Eric Chance, of Appalachian Voices, testified that he calculated $31,000 per month saved by Frasure Creek and $10,000 saved by ICG through the use of non-certified, and therefore less expensive, labs. Patrick Garrity, the state’s Drinking Water Laboratory Certification Officer, testified the previous day to the inadequacies of one of the labs used by the coal companies. He cited a lack of record keeping, failure to use proper quality control procedures, and disorganized equipment in the lab. The opposing counsel challenged Chance’s data interpretation. When asked by Frasure Creek attorney Jack Bender if he had included the instances of repeating data in his graphs, he replied, “It was not our priority to correct your DMRs.”

In the final day of the hearing, Bruce Scott was called as a witness for a second time, this time in defense of the Cabinet. He testified to the Cabinet’s efforts in addressing the violations of ICG and Frasure Creek, but claimed that the suit was interfering in the ability of the Cabinet to pursue other environmental problems within the state. Nevertheless, Scott also admitted that Appalachian Voices identified violations that had not been noticed by the Cabinet. Furthermore, the Cabinet has only investigated and fined the three coal companies original identified by Appalachian Voices as having violated the CWA. The coal companies each called a witness to assert that the problems were merely a result of substandard lab work and that the companies had quit using the offending lab, S & S Monitoring. ICG has recently hired a new company, East Kentucky Water Monitoring, to collect water samples. The company was founded and operated by the same employees who previously worked at S & S Monitoring.

At the end of the hearing, all parties agreed to submit post-trial findings and conclusions within 30 days, in place of oral closing statements. Judge Shepherd strongly urged all parties to attempt to settle through a second round of mediation. Judge Shepherd stated that he foresees “difficult and novel issues that are likely to keep the problem in litigation for a long time.”

Appalachian Voices is willing to consider a second round of mediation, provided the other parties come to the table in good faith. Any settlement reached must assure that these companies stop polluting Kentucky’s waterways. Barring successful mediation, we look forward to continuing with this precedent-setting litigation. Setting new legal precedents in clean water act litigation is something that makes Waterkeepers very happy. Regardless of the future outcome, we have already succeeded in achieving record-setting Clean Water Act fines against coal companies in Kentucky and changing the way they have to do environmental compliance.

Additional coverage of the hearing can be found in the following news articles:

Wall Street Journal
Courier-Journal
The Lexington Herald-Leader
The Independent: article 1, article 2, article 3

First Day Wrap-up of Kentucky Coal Trials

Thursday, September 1st, 2011 | Posted by Erin Savage | No Comments

The first day of the hearing against the Kentucky Energy and Environment Cabinet and ICG and Frasure mining companies concluded Wednesday evening. Appalachian Voices, Kentucky Riverkeeper, Kentuckians for the Commonwealth and Waterkeeper Alliance intend to show that the penalties assessed by the Cabinet for the two coal companies are not sufficient to address the severity of the Clean Water Act violations committed by the two companies. If the judge rules in our favor, we will be able to pursue further legal action against both ICG and Frasure Creek for their violations.

Over the course of the day, our attorneys built a case that demonstrated the violations found were not merely administrative violations, but substantive pollution violations that indicated clear disregard for the law. Patrick Garrity, of the Kentucky Department for Environmental Protection, testified to the poor condition of the lab used for many of the coal companies’ discharge monitoring reports, as well as the large discrepancies between testing results from the lab and the state during split sampling. The Cabinet was reluctant to disclose details of the means by which the number of violations and fine amounts were determined. Judge Shepherd acknowledged the need for “protection of the Cabinet’s deliberative process,” but explained that understanding this detail would allow the court to determine the appropriateness of the Cabinet’s actions against the coal companies. Throughout the proceedings, objections came quickly from the opposing counsel. For the most part, these objections were overruled or noted, rather than sustained. We were not allowed to call the Energy and Environment Cabinet Secretary, Len Peters, as a witness, as he was not directly involved with investigation of the companies. We were allowed to ask questions about his op-ed article addressing reasons for the Cabinet’s enforcement failures. You can read more on this in Ronnie Ellis’s story here.

Several interesting facts were revealed during the hearing. The Cabinet admitted to not knowing the total number of NPDES pollution discharges held between the two companies. Given that wastewater discharge pipes from sediment and slurry ponds on surface coal mines are required to be permitted under the Clean Water Act, it is reasonable to believe that an accurate count of such discharges would be known to the regulators. Additionally, the Cabinet acknowledged new, on-going violations by both companies in 2011. Unlike many earlier violations that consisted of repeating “cut and paste” data, the 2011 violations are often permit limit violations of heavy metals and pH levels. This confirms our suspicion that the earlier inaccurate data likely covered up excessive, illegal pollution discharges. The Cabinet has brought new enforcement actions against both companies for the new violations. Additional coverage of the trial can be found in James Bruggers’s article.

Appalachian Voices just received copies of the Notice of Violation (NOV) documents submitted by the Cabinet to both ICG and Frasure for their most recent violations. The violations, listed below, are clearly much more serious than mere administrative violations.

The violations cited for ICG are:

• 75 instances of permit limit violations for manganese, iron, total suspended solids and pH
• 17 instances of failing to report twice a month as required
• failure to submit any DMRs for the Left Fork Processing Waste Impoundment for January, February, and March 2011
• failure to submit iron, manganese and flow results for three outfalls

The violations cited for Frasure Creek are:

• failure to submit any DMRs for 260 outfalls at 32 facilities for January, February and March 2011
• 165 instances of monthly average and daily max permit limit violations for manganese, iron, total suspended solids and pH
• failure to get permit coverage for 9 outfalls (discharging without a valid permit)
• 4 instances of failing to sample twice a month as required

To put these violations in perspective, it would require all wastewater outfalls* from sewage and storm water treatment facilities between Pike, Letcher, Harlan, Martin, Floyd, Knott and Perry counties in eastern Kentucky discharging illegally for 7 months in order to equal the violations from 260 outfalls for which Frasure Creek submitted no DMRs in any one of three total months.

The Cabinet seems to be more stringent in its requirements of Frasure Creek, as compared to ICG. The Cabinet required Frasure to submit 21 corrective action plans to prevent additional pollution discharges above allowable levels; however, even though ICG had 75 pollution exceedences at 18 facilities, they were not required to submit any corrective action plans.

While we are pleased that the Cabinet has continued to investigate both companies for on-going violations, we realize we must not consider our job done. These violations would likely not have been identified had we not put pressure on both the coal companies and the Cabinet through the original notices of intent (NOI) to sue. This most recent set of NOVs came only after we filed our second set of NOIs against Frasure and ICG — the the NOVs were filed just inside the 60 day notice period. Furthermore, the Cabinet has only brought complaints against the companies we have identified. While we certainly hope this fact indicates that all other surface coal mines are operating within the law, we find this possibility unlikely. The fact remains that mountaintop removal mining and valley filling result in tremendous negative impact to water quality, making it both difficult and costly for mining companies to properly control their pollution discharge.

*as calculated from 35 total outfalls mapped by the state of Kentucky for the above mentioned counties.

Delivering 30,000 Bottles of Water to KY Families with Contaminated Wells

Friday, August 19th, 2011 | Posted by Jamie Goodman | 1 Comment

On Thursday, Appalachian Voices and Kentuckians for the Commonwealth helped Keeper Springs Natural Spring Water delivered 30,000 bottles of water to thirteen Kentucky families in Pike County whose well water is contaminated with methane.

Earlier this year a well became contaminated with so much methane gas that it caught on fire. Residents say their well water flows black and orange sometimes and other times burns their skin. They reported the problem to government officials in May.

Four months have gone by and the residents still do not have a permanent source of clean, safe drinking water. Now Keeper Springs Natural Spring Water, Kentuckians for the Commonwealth and Appalachian Voices have stepped in to provide residents with a tractor-trailer load of bottled water.

Pickers of all Ages to Take the Stage at RiverFest

Monday, May 9th, 2011 | Posted by | No Comments

By Parker Stevens
Parker served as Development Associate for Appalachian Voices from January 2010 to December 2011, coordinating our membership and directing two Riverkeeper festivals for the organization. She left to head up the Appalachian Women’s Fund based in Boone, N.C.

Appalachian Voices’ 2nd annual RiverFest is coming up on June 4th at the beautiful park in Valle Crucis, N.C. With lots of great activities – from storytelling to fly tying, primitive skills to facepainting – and a variety of vendors, RiverFest promises to be a great day by the river.

Local and regional musicians will provide foot-stompin’ tunes from a solar powered stage. Festival goers can hear blues and bluegrass throughout the day and can even bring their own instruments and join in at the Pickin’ Parlor.

Bill Adams, Banty Rooster Bill Adams from Charlottesville, Va., will start the morning off with some solo, acoustic guitar picking. His unique fingerstyle arrangements blend old time and blues and even a little ragtime. His country blues approach to traditional fiddle tunes makes for a fun, one-of-a-kind sound that everyone can enjoy. Sample some of his songs online at www.fngrpkr.com. (11 am – 1 pm)

Boone is full of talented performers of all ages, and some of our younger musicians are taking the stage at RiverFest to show off their skills. Jammers from the Watauga Junior Appalachian Musicians program range from third to eighth grade and attend weekly classes at the Jones House Community Center where they learn traditional folk tunes on guitar, banjo, and fiddle. (1:15 pm to 1:45 pm)

The mountain sounds of the Boone-based band Upright & Breathin’ will round out the afternoon. The core of Upright & Breathin’ consists of Jeff Moretz, Brian Kreher, and Chris Capozzoli, but the group is frequently joined by other talented musicians. Their songs are some of the best bluegrass tunes around, though they also spice things up with elements of jazz, gypsy swing, and good old fashioned rock & roll. (2 pm – 4 pm)

So, bring your dancing shoes and an instrument if you’ve got one, and don’t miss the Appalachian sounds of these regional acts at RiverFest 2011!

Learn more about RiverFest at www.AppalachianVoices.org/Riverfest.

Vulcan’s Boone Quarry Pollution Problem

Thursday, April 21st, 2011 | Posted by Eric Chance | 1 Comment

Last night I was driving home, and noticed that Laurel Fork (along Hwy 105, just outside of Boone) was running a grayish color. I tracked down the source of the gray water, and it turned out to be the discharge from the Vulcan Boone Quarry (Just south of Boone on 105). Here is a video and some pictures of what I found.

A Gray-Brown Plume of water enters Laurel Fork from the Vulcan Boone Quarry. At the top of the photo you can see clear water in the Laurel Fork and then gray-brown water entering the creek from the right.

Gray-Brown Plume in Laurel Fork, created by Vulcan Boone Quarry

Discharge Pipe

The Vulcan Boone Quarry has had repeated problems in the past with discharging milky white and gray water and they got in trouble for it before. As a result they have some fancy monitoring equipment to watch their discharge. The question remains, why is this still going on if they have they monitor this water, and if they have gotten in trouble for this before?

Monitoring Equipment and Pollution

Check back for updates on what Vulcan and the North Carolina Division of Water Quality are going to do about this.

Vulcan's Boone Quarry

Great New Post about our Fight against Big Coal in Kentucky

Wednesday, March 16th, 2011 | Posted by Eric Chance | No Comments

We would like to thank Daily Kos and DWG for writing an awesome article about our ongoing legal battle with 3 coal companies and the state regulatory agency in Kentucky. Check out the article here.

Another Coal Company on the Run

Thursday, March 10th, 2011 | Posted by Eric Chance | No Comments

Yesterday we announced our intent to sue Nally and Hamilton Enterprises for more than 12,000 violations of the clean water act at more than a dozen of its strip mines in Eastern Kentucky. Click here for more information on that action.

Later in the day we noticed something odd about their website, it was gone. In its place was a slideshow of mostly green reclamation sites and by this morning even that was gone. Click here to see if they have anything on their site now. Luckily we acted quickly and were able to capture their old website, so we thought we would share it here. However, one big question still remains, why are they trying to hide? Any ideas? We look forward to your comments.

Click to enlarge images, then click again to make them full size:

Home Page

Locations

Blasting

Awards

Photo Gallery

There was one more page, under the History tab but this page just repeated the text on the homepage, so just go to the homepage.

See James Bruggers’ article on this amazing disappearing website.

Another Kentucky Coal Company Falsifies Water Monitoring Data

Wednesday, March 9th, 2011 | Posted by Eric Chance | 1 Comment

Working in coalition with national and state-wide environmental and social justice groups, we are once again seeking justice for clean water in Appalachia.

At 2pm today, Appalachian Voices and partners announced an intent to sue yet another coal company in Kentucky for violations of the Clean Water Act – this time with a single outfit wracking up more than 12,000 violations.

The company named in this newest suit is Nally & Hamilton, a mining operation based in Bardstown, KY and is one of the largest mining companies in eastern Kentucky.

Nally & Hamilton is not known for being a good neighbor to local residents. In one instance, ex-coal miner Elmer Lloyd’s fish pond in Cumberland, Ky was completely destroyed by toxins, sediment, and mud flowing from a Nally & Hamilton owned strip mine above his home.

The notice against Nally and Hamilton alleges that the company may have filed false, potentially fraudulent, water monitoring reports with the state over the past three years, including cutting and pasting previous data in later reports in lieu of submitting actual data for each month. The suit also claims that the company repeatedly omitted legally-required data from its reports.

Appalachian Voices and its partners previously sued two other coal companies late last year in a legal case that has had as many twists and tangles as an errant patch of kudzu. That case currently has a court date set of June 14.

Appalachian Voices and partners, including Kentuckians for the Commonwealth, the Kentucky Riverkeeper, the Waterkeeper Alliance, teamed up with lawyers from Natural Resources Defense Council on this case.

Nally & Hamilton and the state government have 60 days to respond to the allegations.

— Read the full Press Release

Boone Limits Coal Tar Sealants- Fish and River Lovers Celebrate

Wednesday, February 16th, 2011 | Posted by Eric Chance | No Comments

Last night (February 15) the Boone Town Council passed strict new regulations aimed to limit the impacts of coal tar based asphalt sealants.

Coal tar based asphalt sealants are terrible for the environment and have serious human health effects because they are a major source of polycyclic aromatic hydrocarbons (PAHs). If you have ever stood in a parking lot that is really black, that is coal tar asphalt sealant, and if it smelled like tar or weird chemicals, those are the PAHs. There is really no reason to use this type of sealant, because asphalt based sealants are the same price and are far less toxic.

Although, the regulations do not outright ban the use of coal tar sealants, they do make it much more difficult. The regulations set up a permitting process, for anyone wishing to apply a pavement sealant. There will be a minimal fee for non coal tar based sealants, and a much higher fee for coal tar sealants. The permitting process is designed to allow for education on pavement sealants, and to ensure that sealants are applied in a safe manner (like when there is no chance of rain). The new permitting process will be implemented April 1, to allow for time to develop education materials and finalize the fee structure.

These new regulations are in response to the Hodges Creek fish kill. This past summer the BB&T on Highway 105 in Boone applied coal tar based asphalt sealant to their parking lot in the rain. The sealant washed off into Hodges Creek, killing all life in the creek until its confluence with Boone Creek, near the mall, 1.5 miles downstream. Shea Tuberty of Appalachian State told the town council that he had done sampling in Hodges Creek in January, little life has returned to the Creek, six months after the spill.

Thanks to everyone who came out to the town council to stand up for clean streams!

Great News for Clean Water in Kentucky

Friday, February 11th, 2011 | Posted by Eric Chance | No Comments

In a precedent setting move today, Judge Phillip Shepherd granted limited intervention rights to Appalachian Voices, KFTC, the Kentucky Riverkeeper and Waterkeeper Alliance in the Kentucky Energy and Environment Cabinet’s Case against International Coal Group (ICG) and Frasure Creek Mining.

Cartoon

Here is the full press release:

FOR IMMEDIATE RELEASE

Judge grants environmental groups the right to
intervene in Kentucky Clean Water Act case

– – – – – – – – – – – – – – – – – – – – – – – – – – –
CONTACTS
Donna Lisenby…. 704-277-6055…. donna@appvoices.org
Sandra Diaz….407-739-6465…. sandra@appvoices.org
– – – – – – – – – – – – – – – – – – – – – – – – – – –

A Kentucky judge today granted environmental groups a motion to intervene in a legal case against two coal companies in violation of the Clean Water Act.

State Court Judge Phillip Shepherd set a precedent by issuing an order granting four environmental groups’ motion to intervene in a lawsuit between the State Energy and Environment Cabinet and defendants, ICG and Frasure Creek Mining, the two largest coal companies in Kentucky. The ruling marks the first time a third party intervention has been allowed in a state proceeding between a potential Clean Water Act violator and a state agency in Kentucky.

The plaintiffs in the case include Appalachian Voices, Kentuckians for the Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance as well as four individual citizens.

Saying it would be “an abuse of discretion to deny those citizens and environmental groups the right to participate in this action,” Judge Shepherd ordered that the groups be allowed to fully participate in the legal proceedings leading up to a June 14th hearing on whether the proposed settlement between the Cabinet and the coal companies is “fair, adequate, and reasonable, as well as consistent with the public interest.”

“We look forward to working cooperatively with the Kentucky Energy and Environment Cabinet to execute the Judge’s orders to conduct additional inquiry and get to the bottom of this case,” said Donna Lisenby, Director of Water Programs for Appalachian Voices.

The case was brought against the coal companies by the Kentucky Energy and Environment Cabinet in December, in response to a 60-day Notice of Intent to Sue filed by the environmental groups in October 2010. The original notice alleged 20,000 violations of the Clean Water Act, with potential fines of $740 million for the companies. The Cabinet’s proposed settlement attempted to fine the coal companies a combined total of only $660,000.

The environmental groups moved to intervene in the proposed settlement between the state and the coal companies, providing evidence that the state’s plan did not sufficiently address the alleged violations or deter future violations. The judge ordered the Kentucky Energy and Environment Cabinet to allow public comments on the case, eventually receiving many letters from citizens across the state.

Judge Phillips summed up the key reasons for granting the intervention in his order, stating “The Cabinet, by its own admission, has ignored these admitted violations for years. The citizens who brought these violations to light through their own efforts have the legal right to be heard when the Cabinet seeks judicial approval of a resolution of the environmental violations that were exposed through the efforts of these citizens. In these circumstances, it would be an abuse of discretion to deny those citizens and environmental groups the right to participate in this action, and to test whether the proposed consent decree is “fair, adequate, and reasonable, as well as consistent with the public interest.”

“We are very pleased with the decision, which will allow us to conduct depositions and other discovery,” said Peter Harrison, a third year law student with the Pace Environmental Litigation Clinic who argued on behalf of the environmental organizations and citizens in court last month. “By allowing our intervention, the judge has ensured that the people’s interest in clean, healthy waters will be adequately represented as we move forward.”

“Enforcement of clean water laws, enacted to protect the public from harmful pollution, was intended to be a transparent process,” said Attorney Mary Cromer of the Appalachian Citizens’ Law Center and counsel for the plantiffs. “By allowing intervention, the Court has made sure that will be the case. This is a major victory for the citizens of Kentucky.”

Community members like Ted Withrow, a member of Kentuckians for the Commonwealth, were encouraged by the decision. “For over 100 years the people of Kentucky have been blocked by King Coal and the government they control, from redress of wrongs inflicted upon them,” said Withrow. “Judge Shepherd is to be commended for his brave action in upholding the rights of the people. He has put his finger on the scales of justice today and attempted to bring balance.”

###

For interviews and images, please contact sandra@appvoices.org.
Visit www.appvoices.org/kylitigation/ for details.
For video from the court room in January, please see: Kentucky Legal Action Update

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