Posts Tagged ‘Appalachian Water Watch’

Appalachian Coal Companies Face Major Fines for Clean Water Act Violations

Wednesday, March 12th, 2014 - posted by brian
Two recent federal enforcement actions against major Appalachian coal companies, Alpha Natural Resources and Nally & Hamilton, are a positive sign. But they do not solve the fundamental problem of water pollution that stems from mountaintop removal. Above, pollution water at Nally & Hamilton's Fugitt Creek mine in Harlan County, Ky.

Recent federal enforcement actions against Appalachian coal companies are a positive sign, but even record fines do not solve the fundamental problem of water pollution that stems from mountaintop removal. Above, polluted water at Nally & Hamilton’s Fugitt Creek site in Harlan County, Ky.

The Associated Press reported this morning that Nally & Hamilton, one of the largest coal companies in Kentucky, will pay $660,000 in fines for illegally dumping mining debris into Appalachian streams.

According to AP, prosecutors allege Nally & Hamilton Enterprises violated the federal Clean Water Act by dumping mining waste in streams 1,000 feet beyond the permit’s boundary at its Fugitt Creek site in Harlan County, and by dumping waste in Knott County streams surrounding its Doty Creek site before a permit was even issued.

The fine is the result of a proposed consent order in a federal district court. The order must still be signed by a judge. Declining to comment, an attorney for Nally & Hamilton simply said “the consent decree speaks for itself.”

The news comes just a few days after a settlement was reached between the U.S. Environmental Protection Agency and Alpha Natural Resources — the largest mountaintop removal mining operator in the U.S. — stipulating that the company must pay a $27.5 million fine for violations of the Clean Water Act at mines and coal preparation plants in Kentucky, West Virginia, Virginia, Tennessee and Pennsylvania. It is the largest ever civil penalty under the water pollution permitting section of law.

In addition to the record-setting fine, Alpha said it will spend approximately $200 million to install and operate wastewater treatment systems and reduce pollution discharges at its coal mines in those five states.

These types of violations are nothing new, nor are they isolated incidents. Indeed, the enforcement action against Alpha alleges more than 6,000 discharge permit violations between 2006 and last year.

The eventual settlements we’re seeing for violations stretching back years only adds to the evidence of poor enforcement at the state level, especially in those states with close ties to the coal industry.

After exposing thousands of Clean Water Act violations and fraudulent reporting by coal companies in Kentucky, Appalachian Voices and our partners sued and overcame resistance from the Kentucky Energy and Environment Cabinet in order to hold negligent mine operators accountable. Those lawsuits resulted in record-setting fines against the three largest mountaintop removal companies in Kentucky: International Coal Group, Frasure Creek Mining and Nally & Hamilton.

The media coverage of those cases in Appalachia and beyond also helped to pull back the curtain on the epidemic of lax enforcement that continues to damage mining communities throughout Central Appalachia.

While the recent pickup in federal enforcement is an extremely positive sign, as long as mountaintop removal permits are approved water quality will be at risk. Appalachian Voices’ water quality specialist, Eric Chance told the Bristol, Va., station WCYB that while coal companies can treat for some of these [pollutants], “they cannot treat for all of them, not all the time.”

Similarly, the executive director of Appalachian Mountain Advocates, Joe Lovett, told The New York Times that such deals do not solve the fundamental problem of pollution inherent in practices like mountaintop removal.

“What E.P.A. should do is stop issuing permits that it knows coal companies can’t comply with.”

Click here to learn more about Appalachian Voices’ Appalachian Water Watch program and our work to ensuring compliance with laws that protect clean water.

West Virginia Patriot Slurry Spill MCHM Test Results

Tuesday, February 25th, 2014 - posted by Erin

Coal slurry turns Fields Creek dark gray. The lighter brown sediment just barely visible shows a more normal sediment color.

Appalachian Water Watch has received the first set of results from our sampling at the site of the Patriot Coal slurry spill, which occurred sometime in the early morning of Feb. 11 on Fields Creek in Kanawha County, W.Va.

We responded to the scene that afternoon and were able to collect grab samples from multiple locations along the creek, from an upstream site just outside the entrance to the coal preparation plant where the spill originated, to a downstream location just before Fields Creek enters the Kanawha River.

As with most coal-related spills, there are some obvious contaminants associated with coal that should be measured. Many heavy metals, such as manganese and iron, are commonly found in rock layers around coal seams. Other nonmetal elements, such as selenium, are also common in some coal seams. We typically test for a set of heavy metals and other elements, including manganese, iron and selenium, as well as other serious toxins like arsenic.

At a coal prep plant, coal is shipped in from surrounding mines and “washed” to separate it from other materials before it is shipped to buyers. Chemical frothers, like 4-methycyclohexane methanol (MCHM), which spilled into the Kanawha River earlier this year, are used in the separation process. Multiple types of chemicals may be used in different activities around a prep plant. Once the chemicals are no longer needed, they are often disposed of in giant slurry ponds near the prep plant facility. This makes it difficult to know which compounds to test for when slurry spills into a creek.

Google Earth image of the Patriot slurry ponds.

In the case of the Patriot spill, it was difficult to obtain information about what chemicals might have been used at the facility. Initial reports indicated that MCHM might be involved in this spill. Later reports indicated that Patriot had stopped using MCHM in January and was instead using polypropylene glycol.

We decided to test for MCHM in Fields Creek for two reasons: First, if MCHM had been used at the Patriot facility at some point, it seems highly likely that discarded MCHM would be present in the coal slurry, even if it were no longer being used for processing. Second, we smelled the distinct sweet smell of the chemical at several points along Fields Creek.

We have received test results confirming that MCHM was present in Fields Creek on Feb. 11. The results indicated 4-MCHM at 46 parts per billion. This amount is a relatively small quantity, but given how little is know about the impacts of the chemical on humans or aquatic life, it is not currently possible to say whether this amount would have any negative impacts. Thankfully, the nearest groundwater intake is 75 miles downstream and the nearest surface water intake is 115 miles downstream of the spill site, so it is highly unlikely that MCHM from this spill would impact drinking water. We did not find propylene glycol present in our grab samples.

We have also received results for total suspended solids, which indicate the amount of sediment and other undissolved materials in the water column. The first two results were 94 mg/L near the prep plant entrance and 260 mg/L downstream near the Kanawha River. These samples were taken on the evening of Feb. 11, after the spill had been stopped at the prep plant. The upstream level was likely lower than the downstream sample since the spill material had already been washed further downstream.

To put these numbers in perspective, the Clean Water Act National Pollution Discharge Elimination System (NPDES) permit for this facility allows Patriot to discharge a maximum of 70 mg/L for total suspended solids on any given day, and an average of not more than 35 mg/L over the course of a month. Clearly this spill was in violation of the these standards, at the very least. We are still waiting on results from heavy metal testing and will make them available as soon as possible.

Nobody needed the results of laboratory testing to know that the slurry spill was detrimental to Fields Creek. The dark gray water was indication enough that toxins were present in the water and that aquatic life would likely be suffocated by fine sediments. As the nearby houses with cheerful yards and children’s toys reminded us, the potential exists for long-term impacts on nearby residents. No one is drinking directly from Fields Creek, but how many other ways might the residents come in contact with those contaminants?

Though the amount of MCHM found in Fields Creek was small and unlikely to impact drinking water, it is still a very important finding. What it shows is that companies responsible for these spills are allowed to withhold information and avoid responsibility for knowing the details of the risks they pose to surrounding residents and the environment. After the MCHM spill from a chemical storage facility on the Elk River, Freedom Industries waited two weeks before disclosing that a second chemical, PPH, had been present in the tank that had leaked.

During the Patriot slurry spill, the West Virginia Department of Environmental Protection (DEP) believed MCHM might be involved. Presumably Patriot told the DEP this. Later, the DEP stated the smell of MCHM was from a tanker truck removing MCHM from the prep plant. Given our test results, the MCHM smell was clearly not from a tanker truck. Regardless of who was feeding misinformation to whom, it seems ludicrous that a state regulatory agency seems to have so little power to make a coal company operating in West Virginia provide accurate and timely information about a spill that occurs from their facility.

But maybe given the state Division of Homeland Security and Emergency Management Director Jimmy Gianato’s statement that the spill “turned out to be much of nothing,” we shouldn’t be so surprised at state agency ineffectiveness in West Virginia. Apparently 100,000 gallons of coal slurry spilling directly into a tributary of the Kanawha River is just not a big deal in West Virginia these days. Something tells me the citizens of West Virginia feel otherwise.

KY and NC: Different States, Same Recipe for Lax Clean Water Enforcement

Wednesday, February 19th, 2014 - posted by eric

Yesterday there was a hearing in Franklin Circuit Court for our ongoing challenge of a weak settlement that the state of Kentucky reached with Frasure Creek Mining. The settlement is a slap on the wrist that lets Frasure Creek off the hook for thousands of violations of the Clean Water Act, and it bears a striking resemblance to the settlement between North Carolina and Duke Energy that has come under scrutiny after the company’s coal ash spill into the Dan River.

It seems that there is a pretty standard recipe for how these Clean Water Act cases usually go:

Step 1: Citizens concerned about water quality uncover major problems.
Step 2: They form a coalition of other concerned groups and lawyers and file a 60-day notice of intent to sue (as required by law).
Step 3: Wait around for 57 to 59 days.
Step 4: On the last day of the 60 day waiting period the state agency, that has a very cozy relationship with the industry it is supposed to regulate, will come in and file a sweetheart deal with the polluter and blocks the citizens from being able to file suit.
Step 5: Citizens are then left to either try to intervene or challenge the weak settlement, but they are left with many legal hurtles and polluted water.

In North Carolina, the Department of Environment and Natural Resources blocked several citizen suits aimed at forcing Duke Energy to clean up their coal ash ponds, which have been leaching pollution into the state’s rivers and groundwater. Instead, DENR and Duke formed a settlement that came with a fine of just $99,000, and the requirement they assess pollution from their ash ponds, but nothing more. However, increased scrutiny as a result of the Dan River coal ash spill has put this settlement on hold. We can only hope that a better settlement will come out of this now.

Coal Ash in the Dan River, NC

In Kentucky, Appalachian Voices and our partners (KFTC, Kentucky Riverkeeper and Waterkeeper Alliance represented by Mary Cromer from Appalachian Citizens’ Law Center and Lauren Waterworth) have challenged the way in which this most recent settlement with Frasure Creek was reached.

The Kentucky Energy and Environment Cabinet filed a case in their own administrative court to block our suit against Frasure Creek. We were made full parties to that case but Frasure Creek and the Cabinet entered a weak settlement without our agreement anyway. Basically, we are arguing that excluding us violates due process rights and the settlement is invalid because you can’t have a valid settlement without the agreement of all the parties.

One of the main excuses the cabinet gave for cutting such a nice deal for Frasure Creek was their supposed financial problems, but they completely ignored the fact that Frasure Creek is owned by Essar Group, a giant, multi-billion dollar company, owned by a family of billionaires. Frasure Creek entered bankruptcy, but it was recently bailed out with $150 million from Essar.

This is the second of two outstanding cases we have in Franklin Circuit Court against Frasure Creek. The first began in 2011 and challenges a settlement that was based on false water monitoring data that we uncovered. After that case began, Frasure Creek started using a reputable lab and submitting more accurate water monitoring reports. Those new reports showed lots of water pollution violations, and those are the basis for the case that was at issue yesterday.

At the hearing yesterday, the judge asked a lot of good questions, and we are hopeful that he will do what is right for the water and people of Kentucky.

In all these cases it seems like the key to getting state agencies to do their job is attention from the press and scrutiny from the public. When it comes to corruption, it’s often said sunlight is the best disinfectant.

Another Coal-related Spill Reported in West Virginia

Tuesday, February 11th, 2014 - posted by Jamie Goodman

Field Update from Erin, 10 a.m., February 12, 2014
We tested Fields Creek where the slurry spill entered the creek and upstream for electrical conductivity, which indicates the level of charged particles like salts, heavy metals and other pollutants associated with coal. The conductivity upstream was 391 μS/cm (microsiemens per centimeter) while the value below the spill was 1016 μS/cm. For reference, Central Appalachian streams should measure roughly between 300 and 500 μS/cm.

There is clearly a high level of pollutants from the spill in the immediate vicinity of the spill. Test results here.

So how are West Virginia officials responding to the spill? Check out this video that my colleague Matt Wasson put together:

Field Update from Erin, 11 p.m., February 11, 2014
Several staff responded to the spill this afternoon to collect samples and documentation. We were able to collect samples at the entrance of the coal prep plant, which is 1/4 to 3/4 of a mile downstream of the broken pipe causing the spill. We also collected samples at the end of the Fields Creek, just before it reaches the Kanawha River. We plan to analyze samples for heavy metals, total suspended solids, and organic compounds and will make those results available as soon as possible.

The water in the creek was extremely turbid and was a dark grey, almost black color. Significant sediment had already built up on the banks. We also noticed the same sweet smell we encountered during the crude MCHM spill. There have been several different reports regarding what coal processing chemicals might be in the slurry. Secretary Randy Huffman of the state Department of Environmental Protection said that the plant had used MCHM in the past, but had switched to polyethylene glycol or polypropylene glycol. We hope that as this situation continues to develop, accurate facts are released more quickly than in the recent crude MCHM/PHP spill.

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Update 7:03 p.m., February 11, 2014
Current reports put the spill at 108,000 gallons of slurry, affecting 6 miles of Fields Creek and, despite plant workers’ efforts to stem the spill, discharging some slurry into the Kanawha River. The West Virginia Department of Environmental Protection has acknowledged the gravity of the incident, with acting director of the Division of Mining and Reclamation, Harold Ward, stating in Ken Ward’s latest update, “There has been a significant environmental impact.”

A previous incident apparently occurred at the same plant in November 2013, with the plant “discharging black water into south hollow stream and leading to a discoloration of Field’s creek.”

Our folks on the scene worked until nearly dark to gather samples and document the incident; more info to come as news filters in.

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According to several news reports, a coal slurry spill of “significant” size has taken place in Kanawha County, W.Va. As reported by Ken Ward, Jr., in The Charleston Gazette, the spill of slurry — a toxic byproduct of washing toxins off of coal after mining — happened between midnight and 5:30 a.m. this morning when a pipe ruptured between a processing plant on Fields Creek and an impoundment where the slurry is stored. According to a spokesperson for the West Virginia Department of Environmental Protection, there are no drinking water intakes “in the immediate vicinity of the spill.”

Members of the Appalachian Voices Water Watch team are in West Virginia and heading to the scene nowstay tuned for updates and an on-site report as we learn more about this developing story.

First photos from a slurry spill in Kanawha County, W.Va.

First photos from a slurry spill in Kanawha County, W.Va. — visit Flickr for more images and high-resolution versions

The handling of slurry in the coal-mining regions of Appalachia has a long and contentious history that was revealed to the world by the Buffalo Creek disaster in 1972 that killed 125 West Virginians and left more than 4,000 homeless. Beyond the threat of massive surface impoundment failures, slurry injected in abandoned underground mines has permanently poisoned the wells of thousands in Appalachia. Check out our story in the August/September 2012 issue of The Appalachian Voice, “Buried Blackwater: Revealing Coal’s Dirty Secret” to learn more.


Some Results, Few Conclusions in West Virginia’s Crude MCHM Spill

Thursday, February 6th, 2014 - posted by Erin

Image from Dylan Petrohilos

Appalachian Voices’ Appalachian Water Watch team has received results for 4-methycyclohexane methanol (4-MCHM), the main component of the crude MCHM and PPH mixture that spilled in Charleston, W.Va., from several locations impacted by the spill.

Almost a month after the spill, the Centers for Disease Control (CDC) continues to use 1 part per million (ppm) as the safe level for drinking water for most individuals, and suggests that pregnant women avoid drinking water with any MCHM. The lowest detection limit currently available for 4-MCHM appears to be 10 parts per billion (ppb). By default, that means any level less than 10 ppb (which is 0.01 ppm) is just reported as zero. Levels of 4-MCHM in most areas have fallen below 10 ppb, but reports continue to come in of people impacted by fumes associated with the chemical. As of this week, five schools have closed due to concerns about fumes and possible associated water contamination.

The results obtained by Appalachian Voices on Friday, January 10, at the site of the spill indicate that the level of 4-MCHM in the Elk River just below the site of the spill was 1.130 ppm – just above the level considered “safe” by the CDC. The level farther downstream near the drinking water intake of American Water was 0.913 ppm. This was at least one full day after the spill started, and containment efforts had already begun, so it was possible that river levels had already dropped lower than levels in water that had already entered drinking water lines.

We tested the water of several homes in several different rural towns toward the ends of the American Water service area. Results in several homes in Ashford and Nellis, in Boone County, came back as a “non detect,” indicating that 4-MCHM levels were at least below the detection limit of the laboratory we used – 0.050 ppm. The water use ban had already been lifted at each of these homes, and all of the homeowners had flushed their water lines. We did notice the faint sweet smell of MCHM coming from the hot water of one of the homes. It was quite evident that the hot water caused the MCHM to smell more strongly, as it vaporized. Despite the smell, a test from the hot water tank still indicated that 4-MCHM was not present above 0.050 ppm. Tests in homes that had not yet been flushed revealed the presence of 4-MCHM. Tests were done in Foster, Eskdale and Sharples, W.Va. The results were 0.218 ppm, 0.215 ppm and 0.381 ppm respectively.

A superficial review of these results might seem to indicate that flushing individual water systems in homes that had been released from the drinking water ban was effective in eliminating most of the MCHM from the pipes. When combined with additional data and personal observations from affected residents, the conclusions become less clear. Several individuals who owned the homes where we tested reported that the smell returned to their home later on, or appeared for the first time, in some cases several days after flushing their pipes. Even now, many residents continue to report the smell and associated health problems such as burning eyes and itchy skin.

A mountaintop removal mine near William Holsting’s home near Ashford, W.Va.

“I still don’t trust the water,” says William Holsting, whose home is impacted by the spill. “You wash your hair and you feel itchy and scratchy about your ears, and I don’t know if it’s the water or just in my mind.”

He’s not sure whether his confidence in West Virginia American Water can be restored. “I’ve been thinking about whether it’s worth the cost to put a well in, and take a risk that it would be dry or have red water,” he says. Contamination of wells and rivers that historically provided drinking water for rural communities by coal mining is what drove many residents onto a highly centralized private system provided by American Water.

Continued uncertainty has been exacerbated by new revelations in the weeks following the spill. On January 21, Freedom Industries announced that a second chemical, PPH, had been present in the leaking tank. On January 27, Freedom Industries increased the reported amount of chemicals spilled to 10,000 gallons. Independent testing has indicated the presence of formaldehyde, a possible breakdown product of 4-methylcyclohexane methanol, in at least one location in Charleston. Formaldehyde is a known carcinogen.

Two days ago, Sen. Jay Rockefeller (D-W.Va.) spoke before a Senate environmental panel:

“Industry does everything they can and gets away with it almost all the time, whether it’s the coal industry, not the subject of this hearing, or water or whatever. They will cut corners, and they will get away with it … I’m just — I’m here angry, upset, shocked, embarrassed that this would happen to 300,000 absolutely wonderful people, who, you know, work in coal mines and that stuff, but they’re depending on the fruit of the land, wherever it may be, for survival. They’re making it, but barely.”

Realities on the Ground in the West Virginia Water Crisis

Wednesday, January 29th, 2014 - posted by Erin

Paddling toward the Freedom Industries spill site

I checked Facebook early on the morning of January 9th, cursing my mild addiction to social media, and was suddenly glad that I had. I saw a news report of a chemical spill in Charleston, W.Va., which I quickly emailed to the rest of the staff at Appalachian Voices. I then packed a bag anticipating the potential to be gone for several days. I knew as little about what I might be doing through my work with Appalachian Water Watch as I did about what exactly had happened in Charleston.

As the morning continued, we learned more through news reports and our friends on the ground in West Virginia. A chemical storage facility had leaked a substantial but still unknown quantity of a coal-processing chemical, 4-methylcyclohexane methanol. The spill occurred in the Elk River, originating at a chemical company called Freedom Industries located just upstream of a drinking water intake for West Virginia American Water that serves more than 300,000 people. The Appalachian Water Watch team decided to collect samples at the spill site. We feel that it is important to obtain independent samples and test results in many cases, as self-reporting by industry is not always reliable.

Blue haze over the Elk River, likely at least partially from the crude MCHM spill. Ice is visible on the river as well.

When we arrived at the Elk River, Rob Goodwin of Coal River Mountain Watch was there to meet us and orient us to the situation. At the river, we noticed the distinct sweet, licorice-like smell that first alerted nearby residents to the presence of Crude MCHM. There was also a low fog over the river, which might have seemed unremarkable except for its unusual blue tint. We were able to paddle down the river from the boat launch to the drinking water intake for West Virginia American Water, and then upstream to just below the spill site at Freedom Industries. We sampled at both locations, and are still waiting for the results.

Collecting river samples for analysis

While on the water, we encountered a small boat that was presumably driven by employees of Freedom Industries. They strongly suggested we get off of the river “because of the smell.” A West Virginia Department of Environmental Protection boat also passed by. We paddled upstream as safely as possible, trying to limit our direct skin contact with the water, but were unable to limit our exposure to the fumes from the chemical. We recommend that others not visit spill sites without proper information and training.

I returned the following week, once the water ban lifted in communities surrounding Charleston to test tap water in homes. We worked with several other people from local nonprofits and universities to combine our efforts in collecting data throughout WV American Water’s service area. I tested water at several local residences and churches in rural communities in Boone and Kanawha counties. I was able to test in communities where the water ban had been lifted, and communities where the ban was still in effect. In the houses where I tested, some people had flushed their water lines but others had not. One trend I noticed was that it was much easier to smell the chemical when the hot water tap was running, even in households that had flushed their systems.

Armed with a small supply of gallon jugs of water, I stopped at several local water distribution sites to inquire about opportunities to test water in homes. Several communities had active water distribution sites, supplied with water from both state or federal agencies, and from local nonprofits. As more areas were deemed “safe” by WV American Water and water distribution decreased, many individuals still did not feel comfortable drinking the tap water and began to rely more heavily on the water supplied by volunteers.

Water distribution in Ashford, W.Va. There is a mountaintop removal site visible in the background.

While most people I met with seemed well stocked with bottled drinking water, other problems arising from completely unusable tap water became apparent. This water ban was not just a ban against drinking the water, but also other uses, including bathing, washing dishes or doing laundry. I met families struggling to keep up with household chores that required water to complete. Laundry and dishes piled up, especially for families with many children.

Once back at the office, it became evident that though many officials were treating the problem as solved, residents were having ongoing problems with their water. We began to use our water pollution reporting site, to record the experiences of those on the ground and to share any new factual information that continued to trickle out. Over the last week, we have fielded calls and emails from people in Charleston and in the outlying areas, who continue to encounter the smell of the Crude MCHM in their water and experience health complications from exposure. One report indicated that children in the household had experienced a rash after coming in contact with the water on January 7 — two days before the spill was reported. Several callers asserted that the only apparent solution was to move out of West Virginia. All expressed continued uncertainty about the safety of their tap water.

As results of water sampling we conducted come in, I struggle with what to tell the people whose tap water I tested. Even when the results indicate no presence of the chemical, I can’t be sure that the chemical won’t work its way through miles of water lines, only to show up at their houses later. If the levels come back below the recommended 1 part per million, should I tell them the water is safe to drink? The chair of the Chemical Safety Board has commented that Crude MCHM and PPH should not be in drinking water at any level. People may be able to continue drinking bottled water, but what about all of the other daily activities they need water for — washing clothes, bathing, washing dishes? With so little information available, people are going to have to decide for themselves how much risk they can tolerate. Inevitably, those with less ability to change their situation may be the people who suffer the highest consequences because they can’t afford to move or even to continue buying bottled water.

A few positive developments have come out of an otherwise terrible situation. As local nonprofits work to provide water, neighbors who may not have seen eye-to-eye on environmental and public health issues before are beginning to talk. Existing citizens groups are increasing their collaboration through projects like the WV Clean Water Hub, and new groups are being created. Additionally, Appalachian Water Watch’s latest initiative, the Appalachian Water Watch alert site, has been getting steady use by impacted residents who want to share their stories.

We hope that providing a public platform to share the ongoing water contamination will help to urge agencies and politicians to find solutions.

Fighting for Clean Water in Virginia: Standing up to Coal Industry Bullies

Tuesday, January 28th, 2014 - posted by eric
Kelly Branch

Kelly Branch and several other tributaries of Callahan Creek, near the town of Appalachia Virginia are the subject of a new lawsuit for selenium pollution. (Photo: SAMS)

Today, Appalachian Voices along with our allies in Virginia filed a lawsuit against Penn Virginia for water polluted by selenium coming from abandoned mines on their land. This lawsuit is one in a series of suits aimed at cleaning up selenium pollution in Callahan Creek.

Callahan Creek flows south through a series of small communities and into the town of Appalachia in Wise County, Va. Along the way it passes a number of coal mines including the Kelly Branch Mine and the Stonega Slurry Impoundment. Last year, the same group of allies initiating this lawsuit filed legal actions for selenium pollution against the operators of both of those facilities. The operator of the Kelly Branch Mine, A&G Coal, submitted a report in response showing that much of the pollution in streams surrounding that mine was coming from old mines on Penn Virginia-owned property. That report is the primary basis of the lawsuit filed today.

Water monitoring by Southern Appalachian Mountain Stewards (SAMS) has shown that there are major selenium problems in Callahan Creek and its tributaries including Kelly Branch. Selenium is extremely toxic to fish at very low levels. It causes reproductive failure, deformities and death.

This two headed trout was deformed by selenium pollution.

Pennsylvania-based Penn Virginia owns nearly one-quarter of the land in Wise County and is the county’s largest landholder. Essentially, landholding companies like Penn Virginia operate by leasing their land to mining, natural gas and timber companies and collecting royalties from those companies. Once mines are abandoned, many continue to pollute nearby streams. Currently in Virginia, these types of pollution discharges are not regulated, so there is no one treating or monitoring them. These legacy mining discharges are a major source of pollution in Southwest Virginia and throughout Appalachia, but no one wants to claim responsibility for them. Through this lawsuit we hope to force large landholding companies like Penn Virginia to take responsibility for the pollution coming from the lands they own.

As required by the Clean Water Act, before filing this lawsuit we filed a Notice of Intent to Sue letter in late 2013. The purpose of such letters is to give polluters and state agencies a chance to address the pollution problems before a lawsuit is filed. Rather than trying to fix their pollution problems, Penn Virginia instead chose to use bully tactics and threaten members of SAMS. The company sent cease and desist letters to several members of SAMS banning them from entering Penn Virginia land that includes a family cemetery and a church that several of them attend.

The Sierra Club, Appalachian Voices and Southern Appalachian Mountain Stewards are represented in this matter by Joe Lovett and Isak Howell of Appalachian Mountain Advocates.

>> Find out more from our press release here
>> Read the legal filing here

Appalachian Voices and Partners Challenge Kentucky’s Weakening of Water Pollution Standards for Selenium

Friday, December 13th, 2013 - posted by eric

This two headed trout was deformed by selenium pollution. Today, we have taken action to keep EPA and Kentucky from allowing pollution like this to get worse.

Earlier today Appalachian Voices and a number of partner organizations sued the EPA over their approval of Kentucky’s new, weaker standard for selenium pollution.

Selenium is extremely toxic to fish, and causes deformities and reproductive failure at extremely low levels. The pollutant is commonly discharged from coal mines and coal ash ponds, but currently Kentucky does not regulate its discharge from these facilities.

These new standards were proposed at the behest of coal industry groups, likely motivated by citizen groups’ success at requiring companies in other states to clean up their selenium pollution. We have also seen the state governments of Virginia and West Virginia take steps towards making similar rollbacks to their own standards, making the EPA’s approval of Kentucky’s weakened standards even more alarming.

Groups Challenge EPA Decision to Gut Clean Water Protections in Kentucky

Friday, December 13th, 2013 - posted by eric

New Guidelines for Coal Mining Pollutant Fail to Protect Waterways and Wildlife

Eric Chance, Appalachian Voices 828-262-1500
Sean Sarah, Sierra Club 330 338-3740
Doug Doerrfeld, Kentuckians For The Commonwealth 606-784-9226|
Judy Petersen, Kentucky Waterways Alliance 502 589-8008

Louisville, KY – Today, community and environmental groups took action against the U.S. Environmental Protection Agency for a recent decision allowing Kentucky to weaken its water quality protections for selenium, a pollutant common to mountaintop removal coal mines. This new standard, which tests selenium levels in fish tissue instead of in rivers and streams where mine wastewater is discharged, is strikingly similar to one the Bush Administration rejected as too weak to protect sensitive aquatic species. The lawsuit alleges that the standard fails to meet protections in the Clean Water Act.

“There’s simply no scientific or legal justification for this EPA to approve a standard worse than one rejected by the Bush administration,” said Alice Howell, Chair of the Cumberland Chapter of the Sierra Club. “In doing so, EPA has made a bad situation much worse. The new selenium standard endangers the health of Kentucky’s already compromised waterways while opening the door for other states to do the same.”

In mid-November, the EPA allowed Kentucky to change the way it monitors selenium pollution from surface mines, a change suggested by coal industry lobbyists, who appear to be motivated by citizen groups’ successful enforcement of the existing protections elsewhere in the region.

Selenium pollution is known to accumulate in fish and aquatic wildlife over time, causing deformities and reproductive failures. When a coal company destroys a mountain to get at the coal underneath, much of what’s left is dumped into nearby valleys and streams. This pollutes the local waterways with selenium, among other substances that pose a threat to fish and humans. Valley fills are a major source of the selenium pollution found at mountaintop removal mines.

“We repeatedly urged both EPA and the Commonwealth to have the US Geological Survey and US Fish and Wildlife Service look at the science behind the new standard. Both federal agencies were instrumental in the rejection of the prior Bush administration proposals. Ignoring our pleas, they moved to finalize the new criteria. We felt we had no other option to protect our waterways than to go forward with our legal challenge,” Judy Petersen, executive director of Kentucky Waterways Alliance stated.

In their lawsuit, the groups argue that the EPA decision was arbitrary and capricious. First, EPA violated the Clean Water Act by allowing Kentucky to institute a scientifically indefensible standard that fails to protect sensitive wildlife. Second, both citizens and EPA raised concerns about the difficulty of implementing a fish tissue based standard, yet EPA approved this standard based on a vague letter from Kentucky officials about how the new standard would be enforced. Kentucky’s assurances are not part of Kentucky state law and are thus unenforceable; therefore, EPA is not entitled to rely upon these assurances in approving the new standard.

“This new fish tissue based standard is just a novel way of letting polluters off the hook for poisoning our fish and waterways,” said Eric Chance, water quality specialist for Appalachian Voices. “The main point of this standard is to protect fish, but testing fish tissue can never tell you how many fish the selenium pollution already killed. A fish tissue based standard creates many more problems than just the ones mentioned in the letter EPA relied on to make this decision; I don’t think EPA or Kentucky have seriously thought through how this rule would work in the real world.”

Doug Doerrfeld of Kentuckians For The Commonwealth added, “KFTC and our allies have worked for years to make EPA fully aware of the systemic failures of Kentucky’s Energy and Environment Cabinet to protect our commonwealth’s people, waters and environment. In light of this history it is disgraceful that EPA would approve a weakened selenium standard that will not only leave aquatic life at risk but will make citizen enforcement all but impossible.”

This action was filed in the U.S. District Court for the Western District of Kentucky. Sierra Club, Kentuckians For The Commonwealth, Appalachian Voices, and the Kentucky Waterways Alliance are represented in this case by Ben Luckett and Joe Lovett of Appalachian Mountain Advocates.


EPA decision on toxic mining waste leaves Kentuckians, other Appalachians at risk

Friday, November 15th, 2013 - posted by eric

Contact: Erin Savage, Water Quality Specialist, 828-262-1500,
Cat McCue, Communications Director, 434-293-6373,

Washington DC – The U.S. Environmental Protection Agency today approved Kentucky’s changes to how the state measures selenium, a toxic pollutant discharged from many mountaintop removal coal mines. Even at very low concentrations, selenium is extremely toxic to fish, causing physical deformities and reproductive failure.

Kentucky had proposed, and today EPA approved, a more complicated system for detecting selenium. The new rule will require testing for the pollutant in fish tissue rather than more straightforward tests that directly sample the concentration in water.

The decision bodes ill for Virginia and West Virginia, whose regulators are poised to begin their own review of how to monitor and regulate selenium in those states.

Kentucky has a history of major problems with enforcement of the Clean Water Act with regards to coal mining. Appalachian Voices, in 2010, exposed thousands of Clean Water Act violations by major coal companies in Kentucky and the failure of state regulators to take enforcement action. Subsequent legal action by Appalachian Voices and a coalition of other groups ultimately led to the largest Clean Water Act fine ever levied in Kentucky against the coal industry.

Appalachian Voices issued the following statement from Erin Savage, Water Quality Specialist on today’s EPA decision:

“The EPA has acted in direct contradiction to its mission by allowing Kentucky to weaken environmental protection for the streams and rivers that Kentuckians use every day for drinking water, fishing, swimming and many other uses.

“Kentucky has proven it can’t, or won’t, sufficiently enforce relatively simple environmental rules. While this new selenium standard may be scientifically defensible, according to the EPA, it is so complicated that it will be difficult to implement and virtually unenforceable. It is unlikely the state has the ability, or the intent, to keep selenium pollution out of the water.

“This sends a signal to other states like Virginia and West Virginia that they, too, can weaken environmental protection for the streams and rivers that their citizens use every day for drinking water, fishing, swimming and many other uses.

“The complex new rule will also make it extremely difficult for citizens to exercise their rights under the Clean Water Act to protect waters they care about.”

Appalachian Voices is an award-winning, environmental non-profit committed to protecting the natural resources of central and southern Appalachia, focusing on reducing coal’s impact on the region and advancing our vision for a cleaner energy future. Founded in 1997, we are headquartered in Boone, N.C. with offices in Charlottesville, Va.; Knoxville, Tn. and Washington, D.C.