Posts Tagged ‘Appalachian Water Watch’

Drinking water problems still plague eastern Kentucky

Friday, May 6th, 2016 - posted by tarence

Basic needs must be met to ensure successful economic transition

A creek in Martin County, Ky., ran bright yellow in April. The state claimed that yellow highway-marking paint was to blame. Photo via Facebook

A creek in Martin County, Ky., ran bright yellow in April. The state claimed that yellow highway-marking paint was to blame. Photo via Facebook.

When Rockhouse Creek in Martin County, Ky., ran bright yellow last month, Tomahawk resident Gina Patrick said she had one major concern: that the pollution might ruin her water well.

Patrick has relied on well water her whole life and didn’t want to pay to be hooked up to the municipal water system. That’s because the Martin County Water District is one of the worst water infrastructure systems in the state in terms of water quality and water loss.

Patrick lives on Rockhouse Creek. She said that as she watched the bright yellow plume move down the creek, she took a sample of the water and put it in a paint bucket under her porch. Two curious newborn puppies on her property found the paint bucket and drank its contents. They became violently ill and died later that day.

At the end of April, the Kentucky Energy and Environment Cabinet released a report detailing the state’s investigation into the spill, but there was no mention of Patrick’s dead dogs. Although many local residents thought the pollution might have been related to fracking — an oily sheen was noticed on the surface of the water — the state claimed that yellow highway-marking paint was to blame. According to Lanny Brannock, a spokesman for the Energy and Environment Cabinet, regulators do not know if someone intentionally put paint in the creek or if it was an accident.

But many Martin County residents still have questions, and that’s not uncommon in a county that has seen its fair share of coal slurry spills and municipal water problems. The Mountain Citizen, located in the county seat of Inez, has doggedly reported water quality and environmental issues for decades. In fact, the newspaper’s diligence, combined with the hard work of local organizers, prompted the Kentucky Public Service Commission to investigate the county’s water system, which has a water loss rate of more than 60 percent and often delivers smelly, foul water.


In the aftermath of Flint, Mich., this video from Martin County caught the attention of consumer advocate and environmental activist Erin Brockovich, who posted it to her Facebook page.

When I spoke with Inez resident Josie Delong back in February, she was very clear about the long-term burdens that come with having bad water:

The biggest [burden] is definitely health issues. But also the fact that most of us are on a fixed income here. Everybody’s losing their jobs in the mines, losing their jobs here or there, and can’t afford these high water bills, and we can’t even use the water. We’re paying these bills and yet still having to go to the store and get water, and we don’t know what it’s doing to us. And that’s the big fear. We have no idea.

In 2015, the Martin County Water District accrued multiple non-compliance violations for known carcinogens such as trihalomethanes and haloacetic acids. In the offices of the Mountain Citizen, editor Gary Ball points to the back of his latest water bill, which includes a notice for anyone with an immunodeficiency disorder: do not drink the water. “In other words, if you’re as healthy as a horse, drink away,” Ball says. “But sooner or later it’s going to get to you.”

Ball and the Mountain Citizen have also extensively documented the unequal way in which water is distributed in the county, and how many customers are often not informed of boil water advisories or shut-offs in the system. According to Gary and Lisa Smith Stayton, owner and publisher of the Mountain Citizen, the excessive water loss rate often impacts the poorer or more remote areas of the county first. As water is diverted to more populated and wealthy areas in the county, some customers are forced to go without.


Sometimes there’s no water at all. As Ms. McCoy explains in this Facebook post, not having water creates all kinds of social and financial hardships on her day-to-day schedule.

Officials in the county have adamantly denied the extent of the problems, and often portray concerned citizens as alarmists and idealists. The Martin County Judge Executive, Kelly Callaham, has publicly stated that the 60 percent water loss rate in the system is due to people stealing water from fire hydrants and industrial coal mine sites. (I reached out to Mr. Callaham and the Martin County Water District; neither returned my requests for a comment).

“Our officials downplay every single issue, and go to great extents to discredit those who speak up,” says Lisa Smith Stayton. She described a recent fiscal court hearing that turned into an attempt to publicly discredit a Mountain Citizen report about disinfection byproducts in the water. Lisa was incredulous. “One magistrate even said ‘you’re more likely to get cancer from eating a hot dog.’”

In late March, due to pressure from citizens like Delong, Ball and Stayton, state Senator Ray Jones convened a meeting at his office in Frankfort to discuss issues with the water system. Watching footage of the meeting is frustrating; a great deal of time is wasted on discussing surreal and overstated accusations of “water theft.” At several points in the conversation, some variation of this statement is heard: “Martin County is not the only county where these problems occur.”

This is a familiar tactic deployed by the powerful: make the victims appear as if their demands are inherently selfish because, after all, it’s happening to everyone. If you can portray the powerless as hyperbolic and alarmist, you eventually start to convince them that their demands are crazy. This is known as “gaslighting,” and it’s a depressingly effective way to evade accountability.

But residents like Delong aren’t deterred. As she told me:

The more people who talk about it and share their concerns, the better. Because, I’ll be honest, I sat back for a long time and said, “Well why should I say anything about it? I’m just one person. That’s not gonna change anything.” And then the very second I did mention it on social media, and posted a picture, I saw a huge response. And that gave me confidence. Maybe we can change this.

Motivated by health problems that she believes to be caused by the water, as well as mounting medical bills, Delong started a public Facebook forum. She began polling her friends to see if they suffered from similar afflictions and medical costs. The results are astounding in their detail and specificity; many respondents reported skin irritations, stomach issues and autoimmune disorders.

It’s obvious from reading the comments on Delong’s poll, as well as the many comments on the Martin County Water Warriors’ Facebook page, that the public health costs of living in coalfield counties are increasingly burdensome. My own experience bears that out; I live in Letcher County, Ky., about an hour and a half south of Martin County. I spend upwards of $50 each month on bottled water, and most of my friends and neighbors do the same. With coal severance funds declining, we’re also forced to pay more for basic services like trash and recycle collections. The Letcher County Recreation Center, built with coal severance funds, is constantly at risk of closing.

In fact, Gina Patrick’s anxiety about having to switch from well water to potentially-dangerous municipal water is not uncommon. Whether it comes from a well or a municipal system, the drinking water of many eastern Kentuckians is at risk of being polluted. When a dangerous acid mine drainage spill occurred five miles upstream of the Letcher County water intake in March, we were reminded of the many times our water system was poisoned by diesel fuel from local oil magnate Don Childers. It doesn’t help knowing that the state actively works to sweep those violations under the rug, or that it neglects to include important factors like dead dogs in its investigation of a bright yellow creeks.

Delong articulates the full scope of this problem and the struggle to stay:

It just feels like we’re going downhill so fast. I’ve had a lot of friends move out of the county. And it’s sad. I grew up here. And everyone’s just leaving. And it’s becoming a ghost town. And I don’t want to leave. I mean, I could, I’m sure. But who’s going to want to buy a home in this county? How could you sell your home? When someone away from here looks up Martin County, they automatically see repeats of all these troubles and problems and people moving away and no jobs and no opportunities. It’s gonna be impossible to sell your home right now. And I don’t want to leave. I want to do what I can — I’m just one person but I want to do what I can to try and make things better for us, instead of just watching it go downhill.

Officials say that they want people to stay. Some even say that they want economic transition. But what are they doing to help us save money where it matters — on very basic needs like food, water and healthcare? The solutions to these needs amount to the most basic and essential forms of economic development: safe drinking water, functioning local services, affordable healthcare and access to adequately funded social programs. They are simple solutions to very real problems that would save people money and help them stay in the region that they love.

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Response to Spill Leads to Action Against Coal Polluter

Friday, April 15th, 2016 - posted by molly
Acid mine drainage from a coal mine flooded into Pine Creek in eastern Kentucky, killing wildlife and raising concerns over drinking water safety. Photo by Tarence Ray

Acid mine drainage from a coal mine flooded into Pine Creek in eastern Kentucky, killing wildlife and raising concerns over drinking water safety. Photo by Tarence Ray

Pine Creek in Letcher County, Ky., is a small creek that flows through a hollow off Pine Mountain and into the North Fork of the Kentucky River. The point where Pine Creek and the Kentucky River meet is about five miles upstream of the municipal drinking water intake that serves Whitesburg, Ky., and the surrounding county.

When an auger mine operator drilled into an old underground mine at the head of Pine Creek on March 18, releasing a flood of acidic, orange-colored water into the creek, residents were concerned about the proximity of Pine Creek to the water intake. Our Appalachian Water Watch team was contacted by some of these concerned citizens, and was able to document the spill as it occurred in real-time. Photos of dead fish and turtles were posted to Facebook and Twitter, where they quickly went viral.

Due to public pressure from social media and citizens filing complaints, the state of Kentucky acted to control the spill, and filed three violations against the company, Hardshell Tipples. The state initially denied that the mine waste killed any wildlife, but eventually reversed its findings and issued an additional violation to the company. The state also compelled the company to commit to a fish-restocking plan for Pine Creek — a huge victory for water advocates and a sign that the state is aware of the public’s concern.

While water and fish tissue samples are still being processed, the quick response of our team pushed the state to action and prevented the mine waste from affecting the county’s municipal water system. Unfortunately, this is yet another example of the costs that communities near coal mines have to pay in terms of ecological, personal and financial health.

Read more about what happened on Pine Creek on our Front Porch Blog.

What happened on Pine Creek?

Tuesday, April 12th, 2016 - posted by tarence

Another example of the costs that communities near coal mines pay in ecological, economic and human health.

With support from local residents, the Appalachian Water Watch is responding to coal pollution events like the recent spill along Pine Creek in Letcher County, Ky.

With support from local residents, the Appalachian Water Watch is responding to coal pollution events like the recent spill along Pine Creek in Letcher County, Ky. Photos by Tarence Ray

A lot of folks have had questions about the recent mine blowout on Pine Creek, in Letcher County, Ky. So we’ve put together an explainer that runs through the facts, the science and the regulatory protocols behind spills like this.

Where is Pine Creek?

Pine Creek is a small creek that flows off Pine Mountain and into the North Fork of the Kentucky River. The point where Pine Creek and the Kentucky River meet is roughly five miles upstream of the municipal drinking water intake that serves Whitesburg, Ky., and the surrounding county.

So what happened?

On Friday, March 18, an auger mine company, Hardshell Tipples, was mining at the head of Pine Creek when they inadvertently drilled into an old underground mine. Water had stored up in the mine over time, slowly increasing in acidity and iron content creating what is called “acid mine drainage.” This water rushed out into a sediment pond when the mine was breached by the auger drill, and the pond overflowed into the creek.

What is acid mine drainage?

Acid mine drainage occurs when water flows over or leaches through minerals and materials with high sulfur content. Many times, as in the case at Pine Creek, the minerals exposed to water contain iron pyrite, also known as “fool’s gold.” The result is orange-colored water, which stains rocks and river beds. Acid mine drainage also very likely contains other metals, such as manganese. (The polluted water/mine drainage that spilled into Pine Creek contained manganese, and we’ll get to those test results momentarily). As is indicated by its name, acid mine drainage is also highly acidic — so don’t touch it.

But if all these things are found in nature, isn’t this simply a natural occurrence?

All of the ingredients for making acid mine drainage are naturally occurring, that much is correct. But what is not natural is the excavation of these minerals and their exposure to air and water. Ask yourself: is there anything natural about a stream that is unable to support wildlife?

In the case of Pine Creek, water had stored up in the old underground mine over time, slowly gaining acidity and various metals. These mountains are porous; therefore water got into the mine in the first place through years and years of rain. When the iron pyrite in the mine was exposed to oxygen in the water (you know, the “O” in H2O), it created a highly acidic substance that was harmful for aquatic life. When the mine was breached, this highly acidic substance got into the creek, and was indeed very harmful to aquatic life.

A dead turtle on the banks of Pine Creek after the spill.

A dead turtle on the banks of Pine Creek after the spill.

Got it. So back to what happened. What happened?

Our Appalachian Water Watch team was contacted by a concerned citizen who lives on Pine Creek, and we were able to document the spill as it occurred in real-time. Photos of dead fish and turtles were posted and shared by hundreds of people on Facebook and Twitter. We also spoke to residents on the creek who had been trying to catch minnows that morning. Instead, they had a net full of dead fish.

Officials at the Kentucky Department of Environmental Protection initially denied that the spill was responsible for killing wildlife. However, due to public pressure from social media and citizens filing complaints, state officials reversed their findings and determined that over 700 fish were killed as a result of the spill.

The state eventually issued four violations against Hardshell Tipples, and compelled the company to commit to a fish-restocking plan for Pine Creek — a huge victory for clean water advocates and a sign that the state is aware of the public’s concern about how state agencies respond to spills like this.

Was this preventable?

Samples taken on the day after the spill show massive amounts of iron and manganese in the water. State documents obtained by Appalachian Voices and the Appalachian Citizens’ Law Center show that Hardshell Tipples had been issued multiple violations in the past for discharging high amounts of iron from its permit. However, these violations were considerably lower than the most recent Pine Creek spill, and the pictures show it.

It’s established fact that Hardshell Tipples has been reckless in the past with what it choose to discharge off of the permit. But state documents reveal that the company was also issued a citation in 2002 for failing to submit comprehensive underground mine maps to the state. It might be impossible to determine whether this documented negligence had anything to do with the recent mine blowout; however, it’s safe to say that the company has been a consistently careless operator in a watershed that is both ecologically and aesthetically important to eastern Kentucky.

The mine blowout on Pine Creek was clearly preventable. However, this is not to imply that all incidents of acid mine drainage are preventable. The majority of acid mine drainage problems in Letcher County, for example, are from mining that occurred decades ago, and persist to this day. These legacy problems will likely exist for many more decades, unless action is taken by state and federal government agencies.

The main point is that the Pine Creek spill is yet another example of the costs that communities near coal mines have to pay for in terms of ecological, economic and human health.

What do I do if this happens to my creek?

In this case, the quick response of nearby citizens and our team pushed the state to action and prevented the mine waste from affecting Letcher County’s municipal water system. However, in other instances, communities may not be aware of the problem for days, or they may be unable to contact their proper state agencies — especially if the problem begins on a weekend.

In any case, there are several things you can do to get the state to respond:

1. Take photos. Put your photos on social media, and make sure you tag the respective state or federal agencies in your post. Pictures of dead wildlife are especially useful, as they paint a more comprehensive portrait of the affected stream.

You can also send the photos to us through the Appalachian Water Watch Facebook page. If you don’t use social media, make sure you hang on to the photos, and call us immediately at 1-855-7WATERS.

2. Take notes. Make sure you note the date, time, location and any other characteristics of the affected stream. This includes changes in water color, consistency and/or smell. Don’t touch the water unless you’re taking a sample, in which case you should wear gloves.

3. Take a sample. Contact us and we can likely sample the spill within a few hours. If nothing else, purchase a plastic water bottle from your nearby grocery, empty it out, fill it with the contaminated water, and store it on ice until it can be tested. Be sure to wear latex gloves when you grab a sample. The water is likely highly acidic, and could burn your skin. Also, be careful — don’t risk a broken ankle or worse by wading into a fast moving stream just to get a sample. Pictures and notes are often the best course of action.

An end to Frasure Creek’s water violations in Kentucky — finally

Thursday, December 10th, 2015 - posted by Erin

The Settlement

Late Monday evening, Appalachian Voices finalized a historic settlement in a case against Frasure Creek Mining. The settlement follows a five-year-long legal battle to protect eastern Kentucky’s waterways and bring a coal company notorious for violating environmental laws to justice.

The agreement is notable not only for the large penalty imposed, but also because it effectively bars Frasure Creek from further mining in Kentucky. It also marks a welcome, if uncommon, collaboration between clean water advocates and state regulators. The settlement was crafted through cooperation between the Kentucky Energy and Environment Cabinet, citizens groups — including Appalachian Voices, Kentuckians For The Commonwealth, Kentucky Riverkeeper, the Sierra Club, and Waterkeeper Alliance — and Frasure Creek.
FrasurePondandSign
The settlement includes a total potential penalty of $6 million – the highest environmental fine ever levied against a coal company by the Kentucky cabinet. Frasure Creek will not have to pay the fine, however, as long as it does not mine in the state. Regardless of whether the company hopes to ever mine coal in Kentucky again, the settlement requires Frasure Creek to admit to its violations and immediately pay $500,000. If Frasure Creek fails to pay the $500,000, it will be liable for the full $6 million fine.

During the course of settlement negotiations, Frasure Creek transferred its remaining Kentucky mining permits to Liberty Management. The mines were no longer producing coal, but were in the process of reclamation and still had active Surface Mining Control and Reclamation Act and Clean Water Act permits.

If at some later point Frasure Creek or its owners wish to apply for new permits, they must first pay $2.75 million before their mining application will be processed by the state. Essentially, the settlement requires Frasure Creek to either leave the state of Kentucky for good or pay a fine sufficient enough to deter it from returning to its illegal practices.

The Cases

Though this settlement arose out of a notice of intent to sue sent in 2014, the story begins a half-decade earlier.

In 2010, Appalachian Voices began an investigation into the two largest surface mining coal companies in Kentucky. After reviewing discharge monitoring reports (DMRs) – Clean Water Act compliance reports submitted by coal companies to state agencies – Appalachian Voices determined that Frasure Creek Mining and another company, International Coal Group (ICG), were duplicating reports. We later discovered that the third largest coal company in Kentucky at the time, Nally & Hamilton, was also falsifying data in its DMRs.

This pattern made it clear that ignoring regulations is common in the coal industry. In another case of falsified water pollution reporting, a lab employee of Appalachian Labs in West Virginia pleaded guilty to conspiring to violate the Clean Water Act. The lab conducted sampling at more than 100 mine sites in West Virginia. At least four different water-testing labs were involved in the duplicate data cases in Kentucky.

When we first discovered the duplicate reports at ICG and Frasure Creek, we took steps to file a citizens’ lawsuit against the companies under the Clean Water Act. The Kentucky Energy and Environment Cabinet filed its own case against the companies in state court, effectively preempting our case. We intervened in the state’s case to ensure diligent enforcement by the state — a right of citizens that was ultimately upheld by the Kentucky Supreme Court.

In 2011, we filed an additional suit against the companies for permit limit violations that arose when both companies began reporting more accurate data. State officials once again preempted our case, but this time the cabinet filed its case in the Kentucky Office of Administrative Hearings. The cabinet and Frasure Creek then entered a slap-on-the-wrist settlement, over our objections and despite our right to intervene in the case. That settlement was thrown out last year on the grounds that it violated our due process rights. The cabinet has appealed that decision.

In 2014, Appalachian Voices again discovered that Frasure Creek was duplicating DMRs, this time with a different water testing laboratory. Once again, the cabinet failed to identify the problem until we filed a notice of intent to sue over the violations. This time, when the cabinet filed a case in its administrative court, we were granted intervention and allowed much more input in the settlement. The result is the historic settlement filed earlier this week.
FrasureGraph
Finally, not only did the cabinet allow meaningful citizen input, it pursued an enforcement action that may actually be strong enough to prevent this problem from happening again, at least with Frasure Creek. Unfortunately, the settlement was entered on the last day of Governor Steve Beshear’s term and the progress we made with the Beshear administration is not guaranteed to continue during Governor Matt Bevin’s time in office.

The Agency

It is too early to determine how friendly the new Bevin administration will be toward coal companies that flout regulations, but there is already reason to be concerned. Former Gov. Beshear appointed Len Peters as Secretary of the Energy and Environment Cabinet. On paper, Peters had many of the right credentials for the position — he is a scientist and an academic with broad experience working for universities, nonprofits and the federal government. Despite these qualifications, under his leadership, the cabinet still routinely allowed coal companies and other industries to violate environmental regulations with minimal consequences.

In contrast, Bevin’s appointment for cabinet secretary, Charles Snavely, spent the past three decades climbing the corporate ladders at several major Central Appalachian coal companies. Last I checked, the Energy and Environment Cabinet includes not just the division of mine permits, but also the divisions of water, air quality, and renewable energy, among others. Apparently running a company in one of the dirtiest industries in the county now qualifies you to protect communities and ecosystems from that industry, in Kentucky at least.

Charles Snavely, Gov. Bevin's appointment for Kentucky Energy & Environment Cabinet Secretary

Charles Snavely, Gov. Bevin’s appointment for Kentucky Energy & Environment Cabinet Secretary

It gets worse. Not all coal companies are equal. While I would argue that no surface mining coal company in Kentucky is particularly good for Kentucky, some are worse than others. Snavely has worked for both Massey Energy and Arch Coal. In September 2010, he was named the executive vice president of mining operations at ICG.

That’s right — when Appalachian Voices and our partners sued ICG for falsifying DMRs, Snavely was a member of the company’s senior management.

According to news reports, at the time, he was responsible for “all ICG mining operations and corporate oversight of safety and compliance performance.” Before this, when Snavely was just a run-of-the-mill vice president at ICG, 12 miners were killed in an explosion at ICG’s Sago Mine in West Virginia. Family members of the victims claimed the mine had violated safety regulations. In 2011, ICG settled a wrongful death suit.

Despite the current decline in the coal market in Central Appalachia, Governor Bevin seems just as beholden to the industry as many politicians who have preceded him. But appointing an industry insider to regulate the industry will not be enough to save it.

The Future

This settlement, and the commitment of groups like Appalachian Voices and our partners to bring polluters to justice, demonstrate to the new administration that citizens will hold the state accountable. But it’s not clear that Governor Bevin is getting the message. During his campaign, Bevin courted the coal industry and criticized the U.S. Environmental Protection Agency. In October, at the height of the campaign, Bevin even chastised his opponent for saying coal can be done “cleaner.” If he had any downtime on his inauguration day, we hope Bevin read the news.

Coal is rapidly declining in Central Appalachia. But that does not mean the industry, or its influence, will disappear anytime soon or that enforcement of environmental regulations around mining will become any less important. If anything, the thin economic margins of coal companies operating in Central Appalachia today provide an incentive to break rules intended to prevent negative impacts on water, land and communities. As the region envisions a new economy that is not dominated by coal, oversight of mining’s impact on the region is as important as ever.

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Appalachian Crayfish: Canaries in a Coal Mine

Tuesday, May 5th, 2015 - posted by Dac Collins

By Dac Collins

The U.S. Fish and Wildlife Service is proposing that two species native to Appalachia — The Big Sandy crayfish (pictured) and Guyandotte River crayfish — be listed as endangered under federal law after determining the species are in danger of extinction “primarily due to the threats of land-disturbing activities” such as mountaintop removal coal mining. Photo by Zachary Loughman, West Liberty University on Flickr

If you find yourself at a crawfish boil anytime soon, don’t be afraid to go back for seconds. The two species that are sold commercially — red swamp and white river crayfish — are prolific. They can be found in the wild throughout the South and are especially abundant in Louisiana, where they are also farm-raised in ponds.

But here in Appalachia, some of our native crayfish populations are teetering on the brink of extinction, according to a recent report issued by the U.S. Fish and Wildlife Service. Whether or not they are pushed past the point of no return depends largely on the outcome of a recent proposal by the agency to add them to the federal list of endangered species.

Like most creek-dwelling crawdads, the two species in question — the Big Sandy crayfish, which are native to the Big Sandy River basin in Virginia, West Virginia and Kentucky, and the Guyandotte River crayfish, a closely related subspecies found in West Virginia — spend a majority of their lives wedged into the crevices of the creek bottom. These nooks and crannies shelter the crayfish from predators and serve as places to lie dormant during the winter months. But when these rocky creek beds are covered up in sediment, the habitat that these creatures depend on to survive is lost entirely.

This is precisely what is occurring in the Big Sandy and Guyandotte River drainages of West Virginia. The sedimentation has become so severe in recent years that the Guyandotte crayfish population has retreated to the mid-reaches of a single stream, Pinnacle Creek, in Wyoming County.

If the crayfish disappear completely, the ecology of these creeks could change drastically. The freshwater crustaceans are a primary food source for many of the native fish species, including smallmouth bass and trout, which also happen to be the two most sought after sport fish here in Appalachia. Take away the food source and these creeks might eventually be fishless.

The cause of siltation is obvious when you look at where these creeks are located. There are 192 active coal mines in the area, many of which are mountaintop removal mines that are dumping their waste into the headwaters of streams, effectively burying them. And that’s just standard operating procedure. If an accident occurs, a toxic slurry of silt and chemicals spills into the creeks that feed the rivers that run into the reservoirs we drink out of, wreaking havoc on species like crayfish along the way.

The Fish and Wildlife Service specifically mentioned mountaintop removal coal mining in its report on the two crayfish species. The agency determined that, “the Big Sandy crayfish and Guyandotte River crayfish are in danger of extinction, primarily due to the threats of land-disturbing activities that increase erosion and sedimentation, which degrades the stream habitat required by both species,” and that, “an immediate threat to the continued existence of the Guyandotte River crayfish is several active and inactive surface coal mines, including MTR mines, in the mid and upper reaches of the Pinnacle Creek watershed.”

The FWS report also called attention to impaired water-quality — especially hazardous concentrations of sulfate and aluminum — in areas where most of the mines are closed, proving that “the detrimental effects of coal mining often continue long after active mining ceases.”

The proposed endangered species listing could have considerable impacts on the coal mining industry. If the Big Sandy and Guyandotte crayfish are protected under the Endangered Species Act, it would lead to more strictly enforced water quality regulations, which could affect ongoing mining operations in the Big Sandy and Guyandotte River basins as well as coal companies seeking permits to mine in the area.

The Fish and Wildlife Service is accepting public comments on this proposal until May 16. Click here to take action and ask the Fish and Wildlife Service to protect these two Appalachian species.

Déjà vu in Kentucky clean water cases

Monday, February 23rd, 2015 - posted by eric

frasure_creek

Appalachian Voices and our partners have filed a motion to intervene in a case between the Kentucky Energy and Environment Cabinet and Frasure Creek Mining to ensure clean water laws are being enforced in Kentucky.

Late last year we filed a 60-day Notice of Intent to Sue against Frasure Creek after we uncovered thousands of false water monitoring reports the company turned into the state.

The Kentucky cabinet was unaware of these false submissions and responded by filing an administrative complaint against Frasure Creek covering all of the false data we found, a common tactic for state agencies to prevent citizen involvement in this type of case. Now, we are filing a motion to become parties to the cabinet’s enforcement action.

To anyone following our lawsuits against Frasure Creek, these recent developments will sound familiar. This isn’t the first time we’ve caught the company turning in false water monitoring reports. Frasure Creek was one of three Kentucky coal companies we filed legal actions against in 2010 and 2011 for submitting falsified pollution reports that were concealing water quality violations.

In all of those cases the cabinet stepped in with slap-on-the-wrist settlements, compelling us to intervene in cases where we had brought the violations to light. The only difference in this case is that Frasure Creek and the cabinet have yet to reach a settlement, so we haven’t seen how lax the enforcement will be this time around.

Both of the cabinet’s previous settlements with Frasure Creek were thrown out by Franklin Circuit Court Judge Phillip Shepherd last December. In a scathing opinion, Shepherd stated that 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.”

Judge Shepherd’s rulings are being appealed by the cabinet (think about that, the state agency, not Frasure Creek, is asking for an appeal). But we are hoping that this time around the cabinet will take us seriously, and won’t reach a weak settlement or resort to legal run-arounds to prevent citizen involvement. After all aren’t our state agencies supposed to be accountable to the people, not to the corporations they are supposed to regulate?

Appalachian Voices is joined in these efforts by Kentuckians For The Commonwealth, Kentucky Riverkeeper, the Sierra Club and the Waterkeeper Alliance. The citizens’ groups are represented by Mary Cromer of Appalachian Citizens Law Center, attorney Lauren Waterworth, and the Pace Law School Environmental Litigation Clinic.

Read past posts about our clean water lawsuits in Kentucky. Subscribe to the Front Porch Blog to receive regular updates.

To protect or prosecute polluters?

Tuesday, January 20th, 2015 - posted by eric
Water flowing from one of the discharge points in eastern Kentucky where Frasure Creek Mining was turning in false water monitoring reports.

Water flowing from one of the discharge points in eastern Kentucky where Frasure Creek Mining was turning in false water monitoring reports.

Last week the Kentucky Energy and Environment Cabinet filed an administrative complaint against Frasure Creek Mining for hundreds of violations of the Clean Water Act at its mines in eastern Kentucky.

The filing comes just days before the end of the 60-day waiting period following an intent to sue letter sent by Appalachian Voices and our partners to Frasure Creek and the cabinet last November. Our notice letter described our discovery that the coal company had falsified pollution records over the course of 2013 and 2014, racking up almost 28,000 violations that state regulators failed to notice.

The cabinet’s filing includes all of the violations identified by Appalachian Voices and our partners. Under the Clean Water Act, the state’s action essentially preempts our ability to pursue a federal lawsuit.

Four years ago, when we first revealed that Frasure Creek had been falsifying records, the cabinet preempted our lawsuit by reaching a settlement with the company without our knowledge or participation. Later we were allowed to intervene in the settlement between the cabinet and Frasure Creek, a right which was upheld by the Kentucky Supreme Court.

Because the cabinet only filed a complaint and not a settlement in the latest case, we do not know how vigorous its enforcement will be. But if past enforcement is any guide, then one could expect it will not be very strong. The cabinet’s earlier enforcement actions against Frasure Creek were so paltry that they were thrown out in a recent court ruling, and were clearly not strong enough to ensure that Frasure Creek was in compliance since the company returned to submitting false water monitoring reports.

We will have to wait and see if the cabinet is going to take its responsibility to protect the people and water of Kentucky from dangerous pollution seriously. In the meantime, Appalachian Voices and our partners will continue to do whatever we can to ensure that Frasure Creek and other polluters are held accountable for their actions.

Appalachian Voices is joined in these efforts by Kentuckians For The Commonwealth, Kentucky Riverkeeper, the Sierra Club and the Waterkeeper Alliance. The citizens’ groups are represented by Mary Cromer of Appalachian Citizens Law Center, attorney Lauren Waterworth, and the Pace Law School Environmental Litigation Clinic.

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.

Two wrongs don’t make a right: mountaintop removal and stream protection

Wednesday, November 19th, 2014 - posted by Erin

The mining industry likes to claim that mountaintop removal results in minimal impacts to water and that reclamation can often result in new benefits. Unfortunately for the industry, several new studies add to the ever-growing body of work that contradicts these claims. The impacts to communities and ecosystems near mountaintop removal mines far outweigh the benefits of flat land for a new Walmart or prison.

In August, Margaret Palmer and Kelly Hondula published “Restoration As Mitigation: Analysis of Stream Mitigation for Coal Mining Impacts in Southern Appalachia.” The research examines the effectiveness of compensatory mitigation, where coal companies restore previously degraded sections of streams to compensate for other streams buried or damaged during mountaintop removal mining. The study found that mitigation is not meeting the objectives of the Clean Water Act, due to factors including the following:

  • miles of stream restored were often less than the miles of stream damaged or lost completely;
  • the ecological functions of the streams restored were often different from those of streams buried;
  • regulatory assessment is often minimal;
  • where assessment is more robust, streams often fail to meet standards;
  • selenium levels toxic to aquatic life were found at a majority of the study sites.

The study found that most mitigation projects examined focused on restoring the physical structure of the stream, but not necessarily the ecological function. Basically, just because it kind of looks like a stream, doesn’t mean it is a functional stream. This research provides support to a fact those who live around mountaintop removal already know: once streams and valleys are destroyed by mining, you can’t get them back.

Photos from monitoring reports showing restoration projects. “Stream D” (top left) a created channel; “Upper Curry Branch” (bottom left); “Coal Hollow” (bottom right) a restored channel next to a highway; “Harpes Creek” (top right) a created channel. Palmer, 2014.

Another recent study by Nathaniel Hitt and David Smith, “Threshold-Dependent Sample Sizes for Selenium Assessment with Stream Fish Tissue,” provides additional cause for concern regarding both the impacts and regulation of selenium. Selenium is a naturally occurring element that often gets released into streams at unnaturally high levels through mountaintop removal mining. It is toxic to aquatic life at very low levels and is both difficult and expensive to treat.

In an effort to ease regulations around selenium, the state of Kentucky recently updated their freshwater selenium standards. The old standard was based on the amount of selenium in water. The new standard proposes to test the selenium level in fish tissues, when the concentration in the water exceeds 5 ug/L. Not only is this new standard less protective of aquatic life than the original, it will also be more difficult to enforce. The new Kentucky General Permit for eastern coal mines, which was issued last September, outlines enforcement of a permit limit of 8.6 mg/kg dry weight in fish tissue, obtained through two composite samples consisting of 2-5 fish.

Not only is there a concern regarding streams where fish may be scarce or absent, but the new research indicates that the number of fish used in a sample likely has significant impacts on the results. The study investigated the effect of the number of fish in a sample on the likelihood of correctly determining the concentration of selenium in the fish tissue. The study examined both the likelihood of finding a false positive and the likelihood of a false negative result – that either the samples indicated selenium was exceeding the management threshold when it actually was not, or that samples indicated selenium was not exceeding the management threshold when in fact it was. From a conservation standpoint, the consequences of a false negative are clearly more worrisome. One way to decrease this risk is to increase the chance of determining selenium is exceeding the threshold when it actually is not (increasing the type I error rate), but I suspect the coal industry would not look favorably upon that option.

A two-headed trout deformed by selenium pollution.

The study includes a scenario that closely resembles the requirements of Kentucky’s permit — a sample size of 4 fish and a selenium level of 8.0 mg/kg. In this scenario, a violation would be detected at least 80% of the time only when the true selenium concentration is 9.9 mg/kg to 10.9 mg/kg, depending on the chosen error rate. Selenium would have to be up to 36% higher than the threshold of 8.0 mg/kg in order to know that the threshold has been exceeded.

Basically the study indicates that for small samples sizes and high selenium concentrations, you are very likely to incorrectly conclude that you have not exceeded the selenium limit, when in fact, you have. This is an especially big problem for selenium, as it shifts from harmless to toxic over a narrow range.

In short, these two studies seem to indicate that reconstructed streams are unlikely to adequately support ecological functions, like providing appropriate habitat for aquatic life. Even if the reconstruction does sustain fish populations, it is likely that selenium pollution will still pose an insurmountable, or at least underenforced, problem.

If you find this all a bit disheartening, don’t worry, there is something you can do! Take action to change these issues. Oppose permits that will further degrade streams and release selenium into the watershed, comment on the next draft of the EPA’s selenium standards, and keep an eye out for the new Stream Protection Rule expected from the Office of Surface Mining Reclamation and Enforcement next year.

Same coal company, same old (illegal) tricks

Monday, November 17th, 2014 - posted by eric

“We do all those old tricks electronically now.” By Charles Barsotti.

They say you can’t teach an old dog new tricks. That certainly seems to be the case with Frasure Creek Mining. Four years ago we took legal action against the company for submitting false water monitoring reports, and now they are at it again, but this time the false reporting is even more extensive. Almost 28,000 violations of the Clean Water Act in what is likely the largest non-compliance of the law in its 42-year history.

In 2010, Appalachian Voices and our partner organizations served Frasure Creek and International Coal Group (ICG) with a notice of our intent to sue them for submitting falsified pollution monitoring reports to Kentucky regulators. Back then, both companies were reusing the same quarterly reports, changing the dates on the reports but duplicating all the water monitoring data. The reports have changed from paper to electronic documents, but Frasure Creek’s practice of reusing them has returned.

The Kentucky Energy and Environment Cabinet filed a slap-on-the-wrist settlement with the companies, writing off the duplications as “transcription errors” and effectively preventing our legal case from going forward. We challenged the settlement in state court and eventually reached an agreement with ICG, but not with Frasure Creek. We are still waiting on a decision in that case.

In the meantime, we discovered that Frasure Creek has been up to its old tricks. So today, we sent the company another notice of intent to sue for the new batch of duplicated reports.

Before our initial legal action, the companies rarely, if ever, submitted reports that showed violations of their pollution limits. As a result of our investigation, the companies hired new, more reputable labs and began reporting lots of pollution problems, making it clear that their false reports were covering up serious issues. We tried to sue Frasure Creek for these pollution violations, but the state reached another deal with the company, tying our hands.

Frasure Creek Mining reports only a few violations of their pollution limits when they are turning in false reports.

All of this raises one important question: Who would be stupid enough, or so utterly disdainful of federal law, to do the exact same thing they had gotten in trouble for before? One would think that it must have been an accident, because no one would ever purposefully do this again, but there are a few factors that seem to contradict that idea.

• In 2014, when Frasure reused data, it occasionally changed a little bit more than just the dates. There are a number of new duplications where the original report showed violations of pollution limits. All of the data in these reports was reused except for violations, which were replaced with a few very low numbers. (Personally, I am really looking forward to the convoluted tale that Frasure will tell to try to explain away these as “transcription errors.”)

• The new duplications are far too common to be made accidentally by someone who was putting any modicum of effort into their job. In the first quarter of 2014, the company submitted over 100 duplicated reports, so almost half of its reports that quarter were false. That’s almost three times the number of false reports it got caught for the first time around, and translates to almost $1 billion in potential fines.

• Frasure Creek isn’t afraid of getting caught because the consequences are extremely low. The state’s past settlements with the company have been too weak to discourage this type of false reporting, and in fact, may have given the company a sense of security. Under the Clean Water Act, the potential maximum fine per violation is $37,500. One of the state’s past settlements with Frasure Creek set automatic penalties of only $1,000 per violation. So interestingly, it’s when those penalties were in effect that Frasure Creek, submitted lots of duplicated reports, but only reported a handful of pollution violations. (See the period in the blue box on the graph.)

This is one of about 70 Frasure Creek Mining discharges that the company has been submitting duplicated water monitoring reports for.

Frasure Creek has about 60 coal mining permits across Eastern Kentucky, mostly for mountaintop removal mines. Most of the new reporting duplications occurred at mines in Floyd County, but some occurred at its mines in neighboring counties. Pollution from these mines flows into the Big Sandy, Licking and Kentucky rivers.

Frasure Creek may be a bad actor in the mining industry, but it’s not alone in this type of false reporting. A few years ago we took legal action against the three largest coal producers in Kentucky (including Frasure Creek), all of which were turning in false water monitoring reports produced by three different laboratories. In recent weeks there have been two criminal cases in West Virginia for false water monitoring, one at coal mines, and one for duplicating reports exactly like what has been going on here.

These pollution reports are the foundation of the Clean Water Act regulations. Without accurate reporting, it’s impossible for regulators to effectively protect the people and the environment from dangerous pollution. The fact that the Kentucky Energy and Environment Cabinet and the Environmental Protection Agency have done so little to stamp out false reporting in Kentucky is simply deplorable.

Appalachian Voices is joined in this effort by Kentuckians For The Commonwealth, Kentucky Riverkeeper, and the Waterkeeper Alliance. The groups are represented by Mary Cromer of Appalachian Citizens Law Center, attorney Lauren Waterworth, and the Pace Law School Environmental Litigation Clinic.

>> View The Notice of Intent to Sue here (.pdf)

>> View our Press Release here