Posts Tagged ‘Clean Water Act’

Coal slurry spill in West Virginia linked to Alpha Natural Resources affiliate

Thursday, April 20th, 2017 - posted by Erin
Coal Slurry Spill

Black coal slurry on the banks of Drawdy Creek in Boone County, W.Va.

On March 23, the Admiral Processing Plant in Boone County, W.Va., leaked approximately 5,400 gallons of coal slurry into Crooked Run, a tributary of the Coal River. The plant has been operated by Black Castle Mining Company since November 2015 and is affiliated with Alpha Natural Resources. The spill resulted from a broken pipe at the facility, much like the Kanawha Eagle Processing Plant spill just north in Kanawha County in 2014.

Footage courtesy of Kanawha Forest Coalition

The spill occurred 17 miles upstream from Lincoln County’s municipal water intake and 35 miles upstream from the St. Albans intake, both located on the Coal River. A second spill of unknown quantity occurred during cleanup operations on March 24, when a pump being used to move contaminated water failed. In response to the spills, the West Virginia Department of Environmental Protection issued a Notice of Violation, for the company’s “failure to minimize the disturbance to the hydrologic balance.”

Appalachian Voices and Ohio Valley Environmental Coalition staff responded to the spill by collecting water samples and documenting its impact. The facility has a Clean Water Act permit that sets limits on common coal mining pollutants that the plant can release into waterways, which is standard for mines and processing plants. The Admiral Processing Plant permit limits the discharge of iron, manganese, aluminum and total suspended solids.

Spill samples collected by citizen groups were analyzed by two independent, certified laboratories. According to the test results, the spill violated the plant’s daily maximum discharge limit for all four pollutants. The spill also resulted in the discharge of arsenic, beryllium and lead into the stream. While levels of these pollutants were fairly low, all are known to have negative impacts on human health.

The company was able to stop the main spill after about three hours, but not before, the coal slurry spread from the initial tributary, Crooked Run, into Drawdy Creek and all the way to Coal River, approximately 1.5 miles downstream. The coal company did not install any sediment control structures until about 24 hours after the spill occurred.

Slurry spill with hay bales

Before and after photos taken on March 24 showing the installation of hay bales to prevent solid particles from the coal slurry from moving further downstream in Drawdy Creek. These steps were not taken until almost 24 hours after the spill.

We do not yet know how much the Department of Environmental Protection will fine the company. In instances like this, fines should be large enough that companies invest the time and money necessary to prevent further spills rather than just paying for fines and cleanup costs after the fact. Slurry spills continue to be a common occurrence in southern West Virginia and other Central Appalachian states, demonstrating the need for stronger state and federal oversight to protect public water and the communities that depend on it.

Public Frack Complaints Unearthed and Other Shorts

Thursday, February 9th, 2017 - posted by Elizabeth E. Payne

Public Frack Complaints Unearthed

Some 9,442 public fracking complaints spanning 12 years were uncovered at the Pennsylvania Department of Environmental Protection by Public Herald, a nonprofit journalism outlet.

Bill to Study Health Impact of Mountaintop Removal Introduced

On Feb. 1, Reps. John Yarmuth (KY-3) and Louise Slaughter (NY-25) sought to stop mountaintop removal coal mining long enough to study its health impacts by reintroducing the Appalachian Community Health Emergency Act.

N.C. Air Quality Improves

According to the EPA, air quality in North Carolina has improved over the last decade. A 79 percent drop in air emissions can be attributed to fewer pollutants being produced by power plants. Duke Energy has retired seven of its 14 plants in N.C.

EPA to Estimate Coal Job Losses

A federal judge ruled that the U.S. Environmental Protection Agency is required by law to evaluate the number of coal and power plant jobs put at risk by Clean Air Act regulations. The coal company Murray Energy brought the lawsuit against the EPA. The agency faces a July 1 deadline to identify facilities impacted by Obama-era air regulations.

W.Va. Coal Company Settles Water Pollution Lawsuit

Three environmental groups settled a lawsuit with Pocahontas Land Corporation regarding claims that a mountaintop removal coal mine was polluting the tributaries of the Tug Fork River in West Virginia.

Pocahontas agreed to test the water and apply for a Clean Water Act permit, as well as pay reasonable costs and attorney fees.

Company Fined for Frack Waste

Kentucky’s Energy and Environment Cabinet signed a $95,000 civil penalty for Advance Disposal Services’ Blue Ridge Landfill in Estill County after a state investigation revealed that 92 loads of radioactive fracking waste was illegally brought from West Virginia. Blue Ridge must deposit $60,000 of the fine into an escrow account for the school district to use toward educational programs or detection and mitigation, according to the Associated Press.

Clean Energy Resolutions in N.C.

On Jan. 19, the Watauga County Board of Commissioners joined the town of Boone, N.C., in approving a resolution of support for 100 percent clean energy for the state and country by 2050.

PA Stream Temporarily Protected

The Pennsylvania Environmental Hearing Board ordered Consol Energy not to mine beneath Kent Run, a stream in Ryerson Station State Park, while an appeal of the company’s mining permit is underway. Similar mining operations in the park have drained other streams. A Consol spokesman says the company plans to appeal the decision.

Trump’s pick for Commerce has troubled history in coal

Monday, December 5th, 2016 - posted by Erin
(Creative Commons; copyright Palm Beach Daily News.)

(Creative Commons; copyright Palm Beach Daily News.)

President-elect Trump announced last week that he has chosen Wilbur Ross, Jr., as the Secretary of Commerce. Ross, a billionaire investor, has strong ties to Central Appalachian coal and a history of disregard for regulations that protect miners, communities and the environment.

Ross purchased the Kentucky coal mining company Horizon Resources in 2004, when the company went bankrupt, and renamed it International Coal Group (ICG). Ross owned the company until 2011. During that period, ICG was one of several companies Appalachian Voices caught falsifying federally required water pollution reports. The discovery sparked a years-long string of legal cases against several of the largest mountaintop removal coal mining companies in Kentucky.

In 2010, we identified more than 10,000 violations of the Clean Water Act committed by ICG between 2008 and 2009. Appalachian Voices and our partners — Kentuckians for the Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance — filed a notice of intent to sue the company for its violations. The case was preempted by a settlement between ICG and the Kentucky Energy and Environment Cabinet for just 1,245 violations. In the settlement, the violations were blamed on “transcription errors” rather than on intentional falsification.

We later discovered an additional 4,000 violations that occurred in the first three months of 2011. Ross sold ICG to Arch Coal in June 2011, shortly after its last string of falsified data was submitted. Appalachian Voices and our partners were eventually granted the right to intervene in the state enforcement action against ICG and a settlement was reached in 2012 with the cabinet and Arch Coal. The settlement includes $575,000 in fines and instituted a robust third-party monitoring requirement for Clean Water Act compliance at all of ICG’s Kentucky mines.

Actual pollution levels from coal mines in Kentucky told a different story.

Actual pollution levels from coal mines in Kentucky told a different story.

Despite an early defense of “transcription errors,” more accurate water monitoring data later showed a spike in permit limit violations for common coal mining pollutants such as manganese, iron, pH and total suspended solids, demonstrating that the falsified data was covering up real water pollution issues.

False reporting was not the only water pollution issue at ICG mines. In 2011, the Sierra Club, Ohio Valley Environmental Coalition and West Virginia Highlands Conservancy sued ICG for excessive discharges of selenium, a pollutant toxic to aquatic life. The discharges occurred at an ICG mine in West Virginia and had been going on for years prior to 2011, including during Ross’s time as head of the company. That same year, the Sierra Club sued ICG for similar selenium discharges from a Kentucky mine.

And in 2006, still under Ross’s tenure, an ICG mine was the site of one of the worst mining accidents in recent history — the Sago Mine disaster, which killed 12 miners. The U.S. Mine Safety and Health Administration determined that better safety practices could have prevented the disaster. Despite these findings, a judge reduced the number of violations cited and decreased the fine to just $71,800.

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

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

This is also not the first time an ICG executive has been named to a government agency. Last year, Kentucky Governor Matt Bevin appointed Charles Snavely as the Energy and Environment Cabinet Secretary. Snavely held several different vice president titles at ICG during the Sago Mine accident and the string of water pollution cases. Now he runs the state agency that oversees enforcement at mines in Kentucky.

The mission of the U.S. Department of Commerce is to create conditions for economic growth and opportunity. If Trump truly believes that economic growth and opportunity can only be gained at the expense of worker safety, community health and clean water, he could make no better pick than Wilbur Ross.

Navigating the Russell Fork

Friday, October 7th, 2016 - posted by interns

Poised to bolster a flagging economy, one river also faces threats from coal mining

Kayakers at race finish

Kayakers gather at the finish of the Lord of the Fork Race on the Russell Fork River. Photo by Gareth Tate.

By Erin Savage

The Russell Fork River, with its steep gorge walls, impressive rapids and tranquil pools, is one of the best-known and most-visited rivers in Central Appalachia.

Like many waterways in the region, human activity has impacted the Russell Fork for well over a hundred years. At times, coal mining has had a significant impact, but so too have natural gas drilling, construction, sewage and trash dumping. In general, the Russell Fork’s water quality has improved over the last few decades, due to efforts by local residents and stronger regulations from state and federal governments.

Despite better water quality, the Russell Fork faces new threats from potential coal mining. Last year, Appalachian Voices, the publisher of this newspaper, submitted an application to the national river advocacy group American Rivers asking that the Russell Fork River be included in their 2016 list of America’s Most Endangered Rivers. In April, the annual list — which highlights 10 at-risk waterways — was announced and the Russell Fork was included and ranked at No. 7.

The river’s listing was due to a proposed surface mine in the Russell Fork headwaters known as the Doe Branch Mine. A portion of the current mine proposal was approved back in 2005, but the mine’s future remains unclear, as do its impacts on the Russell Fork watershed. At a time when the coal industry has seen massive declines and the region is grappling with an uncertain future, opinions regarding the mine vary widely.

More Than Just a River

Part of the Big Sandy River Basin, the Russell Fork begins in Dickenson County, Va., and flows north into Pike County, Ky. It is the main attraction at Breaks Interstate Park, which spans the border between the two states. In the park, the river forms one of the deepest gorges east of the Mississippi and is home to the Big Sandy crayfish, which is listed as “threatened” by the U.S. Fish and Wildlife Service.

In an area challenged by the economic realities of a declining coal industry, the Russell Fork and Breaks Interstate Park provide a welcome economic boost for the region. In 2015 alone, visitation to Breaks Interstate Park generated $9.95 million in economic impact.

The Russell Fork River is the main attraction of Breaks Interstate Park, which straddles Virginia and Kentucky.

The Russell Fork River is the main attraction of Breaks Interstate Park, which straddles Virginia and Kentucky.

The 52-mile waterway boasts many recreational opportunities, including fishing, swimming and paddling. The Army Corps of Engineers controls the Flannigan Dam, a flood control dam upstream of the sections most commonly used for rafting and kayaking. In the fall, the reservoir is drawn down, creating predictable weekend flows throughout October. These recreational releases attract intermediate and advanced paddlers from around the country. An annual experts-only race through the gorge at the end of October, the Lord of the Fork Race, includes local and international competitors.

Other regional tourism efforts also contribute to new economic impacts in the region. The annual Cloudsplitter ultrarunning race, which travels beside a portion of the Russell Fork and ends in Elkhorn City, Ky., generated $25,000 in new economic impact in 2015 alone, according to a study by Eastern Kentucky University. Other groups in the region are working with the Army Corps of Engineers and their congressional representatives to potentially increase the number of recreational releases from Flannigan Dam.

The Russell Fork has a dedicated following, including local residents and others from surrounding areas in Kentucky and Virginia. For over a decade, the Friends of the Russell Fork, a small but determined group of community members in and around Haysi, Va., have worked to improve the quality of the watershed and promote the river as a vital cultural and economic resource for the area. Under the leadership of Director Gene Counts, a local kayaker and retired public school administrator, Friends of the Russell Fork has worked with other local leaders, school children and visiting AmeriCorps volunteers to clean illegal dump sites and monitor tributary streams for pollution. The organization has provided steady leadership in advancing sustainable environmental practices throughout the watershed.

Map by Jimmy Davidson/Appalachian Voices

Map by Jimmy Davidson/Appalachian Voices

“We work with schools within the watershed, teaching students how to monitor the health of our watershed through hands-on microinvertebrate studies,” says Counts. “I believe engaging young people in our home towns is key to maintaining the health of the Russell Fork.”

In 2011, the organization surveyed more than 200 homes along Russell Fork tributaries for sewage straight pipes and faulty septic systems, providing critical information to state agencies with resources to upgrade the communities’ sewage systems.

The river obtains some additional protections through state and federal programs. In 2010 the state of Virginia designated the Russell Fork a Virginia Scenic River. While the designation does not specifically limit human activity in the river corridor, it does help to increase the influence of local residents’ voices in decisions that may impact the river.

The federal Clean Water Act has also led to improvements in water quality for the Russell Fork and its tributaries through more protective regulations and additional monitoring requirements. The law also requires that states keep a list of impaired waterways and develop pollution management plans for these areas. In 1996, Virginia added Russell Prater Creek, a Russell Fork tributary, to the state’s list. The creek was listed due to its diminished ability to support aquatic life. The state identified two types of pollutants, total suspended solids and total dissolved solids, as the most probable stressors.

Identifying Pollutants

Total Dissolved Solids: substances dissolved in water, including minerals, metals and salts. Common sources include sewage, road salt used in the winter, and heavy metals and minerals exposed through mining and dissolved by rain.

Total Suspended Solids: small solid material floating in the water, such as sediment, plant material and sewage. Common sources include sewage, and debris from construction, logging
and mining.

Total Maximum Daily Load: A TMDL is a pollution budget and management plan developed by states for streams and rivers that do not meet water quality standards. The TMDL identifies which pollutants are causing stream impairment and calculates the maximum amount of each pollutant that a waterway should be able to handle while still meeting water quality standards.

In 2006, the state of Virginia proposed — and the U.S. Environmental Protection Agency approved — a pollution budget, known as a total maximum daily load, for Russell Prater Creek. At that time, there were at least 35 mining facilities discharging pollutants into the tributary. The state identified mining as a major contributor to the creek’s poor health, and developed plans for reducing pollution in the watershed. However, the most recent monitoring data from 2014 and 2015 indicate that the watershed is still exceeding its allowed total dissolved solids wasteload by 1,076,907 kilograms per year — more than twice the target limit established by the state.

The Doe Branch Mine

The Doe Branch mine, as currently proposed, would be one of the newest and largest mines in the Russell Fork headwaters. It began as a plan submitted by Paramont Coal for a 245-acre permit in 2005. At that time, Paramont was owned by Alpha Natural Resources, which was one of the largest coal companies in Central Appalachia and in the country. The mine was also slated to be part of a large highway construction project known as the Coalfields Expressway.

The Coalfields Expressway was originally designed in 2001 as a highway to link U.S. Route 23 in Virginia to Interstates 77 and 64 in West Virginia. Early construction plans were hampered by steep terrain and associated high costs. In 2006, the Virginia Department of Transportation began working with Alpha Natural Resources and another coal company, Pioneer Group, to explore an option where surface coal mines would provide the first steps in constructing the roadbed. The new plan significantly changed the route of the highway so that key mines could be worked into the project, including the Doe Branch mine.

The highway project is controversial — supporters claim it would bring much-needed economic development opportunities to the region, but those opposed to the plan feel it unnecessarily enables additional surface mining and does not adequately consider what is best for nearby communities.

“Road construction in the area could benefit the region, at least through short-term employment, and could motivate new industries to move to the region, but only if the project is well thought out and economically viable,” says Matt Hepler of Southern Appalachian Mountain Stewards.

Both Appalachian Voices and Southern Appalachian Mountain Stewards oppose the Coalfields Expressway, as the plan currently stands, due to its reliance on surface mining.

Plans for the Doe Branch Mine and the highway have progressed slowly — as of the last state inspection in June 2016, no mining activity had started and no wastewater was being released, though there had been some logging. In 2012, Paramont applied for a permit modification that would expand the mine by an additional 860 acres. The update would increase the total size of the mine to approximately 1,100 acres, fill four additional valleys with excess rock and dirt, and increase the number of wastewater discharge points from three to 14. Five of the new wastewater discharge points would release into Doe Branch and Wolfpen Branch, which feed into Russell Prater Creek, the Russell Fork tributary already impaired by mining-related pollutants.

That same year, the U.S. Environmental Protection Agency issued an objection to the company’s request to expand the Doe Branch Mine. The EPA’s objection cited inadequate wastewater permit limits and water quality remediation plans, including the fact that the state did not impose numeric limits on the amount of dissolved solids that could be discharged from the mine’s wastewater outfalls.

The company’s 2011 plan included the construction of 16 wetlands to theoretically reduce both total dissolved solids and total suspended solids in the watershed. However, the EPA stated in its objection that wetlands won’t solve the problem. “We also are unaware of any generally accepted, peer-reviewed literature identifying any geochemical process through which wetlands would remove dissolved, as opposed to suspended solids,” regulators wrote. The agency’s objections still stand in 2016.

Current Developments

In August 2015, Alpha Natural Resources filed for Chapter 11 bankruptcy. The bankruptcy was expected and came in a long line of similar bankruptcies filed by other coal mining companies over the last several years. The change slowed but did not halt plans for the Doe Branch Mine.

Alpha’s plan for emergence from bankruptcy was approved by the court in the summer of 2016. The plan involves the formation of two new companies. One is a privately held, smaller Alpha, which will retain most of the Central Appalachian coal mines. The other is Contura Energy, formed by Alpha’s senior lenders, which purchased Alpha’s Wyoming, Pennsylvania and better-performing Central Appalachian mines. Doe Branch is included in the short list of Central Appalachian mines that Contura now owns.

Though Alpha stated earlier this year that its 10-year plan did not include pursuing the Doe Branch Mine, the change in ownership may indicate otherwise. “When Alpha split in two in order to emerge from bankruptcy, it conspicuously loaded all of its valuable assets into Contura, and left the reorganized Alpha with high-liability assets needing to be wound down and reclaimed,” says Sierra Club Staff Attorney Peter Morgan. “Because the Doe Branch Mine went to Contura, it appears clear that the company sees value in the mine and hopes to continue developing it.”


Andria Davis runs a Russell Fork rapid during a release of the Flannigan Dam. Photo by Leland Davis

In August 2016, a new draft water pollution permit was published by the Virginia Division of Mine Land Reclamation, for the mining operator now know as Paramont Contura, LLC. The new draft permit still does not impose numeric limits on the amount of dissolved solids that can be discharged from the Doe Branch Mine.

The following month, the EPA notified the state of a general objection to the new draft permit, because the 2012 specific objection regarding the amount of dissolved solids the mine would generate had not yet been resolved. Though the EPA will review the new draft to determine if it resolves the issues raised in 2012, given the lack of changes, it seems likely that they will continue to object. But if Paramont can address the EPA’s concerns, the company could secure the last remaining permit it needs in order to move forward.

International prices for coal have increased recently, driven by demand for steel-making coal in China, which could increase production in Central Appalachia. The construction of the Coalfields Expressway could also shift the economic calculations in favor of moving forward. The plan not only makes road construction cheaper, but also decreases the costs of permitting and reclamation for Paramont.

Environmental groups and concerned citizens are continuing to track the progress of the Doe Branch Mine. Even if the mine moves forward, it is likely that increased oversight from these stakeholders could lead to more stringent and protective permit requirements.

Though the coal-bearing mountains on either side of the Russell Fork are part of what places it at risk, the river’s stunning surroundings are also a reason for optimism. Between decades of local stewardship and growing national concern for this Appalachian treasure, there is a community of advocates watching out for the Russell Fork.

Learn more and take action at

West Virginia files Clean Water Act suit against Kanawha County mine

Wednesday, June 29th, 2016 - posted by willie
Acid mine drainage collects at the KD #2 mine site shortly after the state halted work at the mine. Photo courtesy the Kanawha Forest Coalition

Acid mine drainage collects at the KD #2 mine site shortly after the state halted work at the mine. Photo courtesy the Kanawha Forest Coalition

The West Virginia Department of Environmental Protection has brought a lawsuit against Florida-based Keystone Industries over a series of Clean Water Act violations at the controversial KD #2 surface mine.

The 413-acre mountaintop removal mine in southern Kanawha County, W.Va., has been met with much opposition by local residents and others concerned about the mine’s impacts on nearby communities and on Kanawha State Forest, which borders the mine.

The suit, filed on March 9 in the Kanawha County Circuit Court, alleges that runoff from the KD #2 mine contains measurements of aluminum, iron, manganese, selenium, total suspended solids and pH that are in violation of the National Pollution Discharge Elimination System permit granted to Keystone Industries under the Clean Water Act. The primary evidence supporting this claim is the company’s own quarterly discharge monitoring reports submitted to the DEP.

The Kanawha Forest Coalition, a grassroots environmental watchdog group comprised of local community members, has conducted water monitoring at the site since shortly after the mine began operating in 2014. Through these efforts, the coalition has identified numerous and persistent regulatory violations, prompting the DEP to issue 40 enforcement actions against the KD #2 mine to date.

“It was shocking to realize that it was through citizen complaints, and not DEP monitoring, that our land was being protected,” said Becky Park, a Kanawha Forest Coalition member from Charleston. “What it boils down to is we are the government. We can’t assume that DEP employees are monitoring permitted mining operations. We have to read the permits, understand the agreements made with mining companies, be willing to use the systems in place to submit complaints, and go to court when the systems fail to stop violators.”

Daile Boulis, who lives in the community of Loudendale immediately adjacent to the KD #2 mine feels similarly.

“From what I understand, this is one of best written permits in the state, and still, there are forty violations in two years? Imagine what the company would be getting away with, without the citizen enforcement and public media exposure? The same thing goes for the DEP,” said Boulis. “The only reason 75-80% of the violations have been enforced and fined is due to pressure from the Kanawha Forest Coalition. When you consider all of the other mines in West Virginia that don’t have a group like Kanawha Forest Coalition working on behalf of the impacted citizens, that’s terrifying! Our lives should not be the cost of doing business in West Virginia.”

By initiating its own suit against Keystone Industries, the DEP has prevented the Kanawha Forest Coalition or other grassroots organizations from filing suit on similar grounds. However, the organization may choose to file as an intervenor in the case, a move that would earn them a seat at the table — but not veto power — in potential future settlement negotiations with Keystone.

Doug Wood, a retired DEP official with 33 years of experience in water resources, is skeptical of his former agency’s motives in bringing this case against Keystone.

“This lawsuit seems to be an attempt to stop advocates from filing their own suits, and an attempt to get a little money to start water pollution treatment when Keystone says, ‘keep the bond, we’re outta here,’” said Wood. “… The DEP seems to be most interested in getting a court settlement so they can say, ‘we solved that problem’ even though the systemic problems that led to this disaster remain unsolved.”

The DEP’s suit against Keystone is expected to go to trial in spring 2017. Meanwhile, the Kanawha Forest Coalition continues to monitor conditions at the mine, regularly testing impacted streams and alerting the DEP of persistent problems.

Another step toward clean water in Southwest Virginia

Thursday, April 14th, 2016 - posted by Erin
Photo by Southern Appalachian Mountain Stewards

Photo by Southern Appalachian Mountain Stewards

Appalachian Voices, Southern Appalachian Mountain Stewards (SAMS) and the Sierra Club recently lodged a settlement addressing several sources of water pollution in Southwest Virginia. As a result, several sources of the toxic pollutant selenium in Wise County, Va., will be cleaned up and the city of Norton, Va., will be one big step closer to cleaning up an abandoned coal-loading facility.

The Case

In 2014, SAMS, the Sierra Club and Appalachian Voices, represented by Appalachian Mountain Advocates, filed a legal action against Penn Virginia for violations of the Clean Water Act. In response to our allegations, Penn Virginia filed claims against A&G Coal Corp., a Jim Justice-owned company, claiming the company was responsible for at least some the pollution. A&G operates a mine neighboring the Penn Virginia land identified in the case.

The violations included unlawful discharge of the toxic pollutant selenium into several tributaries of Callahan Creek. The violations were discovered by SAMS through a review of records submitted by A&G Coal to state regulators in Virginia. The reports showed discharges of selenium and sulfate. Both pollutants are harmful to aquatic life. Selenium can be particularly harmful, resulting in fish deformities and reproductive failure.

A two-headed trout deformed from exposure to selenium

The Settlement

If approved, the settlement will resolve this case and results in several important water quality improvements in Southwest Virginia. Under the settlement terms, A&G Coal will treat three seeps currently discharging selenium into the Kelly Branch tributary of Callahan Creek. The settlement also requires the companies to provide $35,000 for the initial cleanup assessment of a nearby abandoned coal processing site in Norton known as Tipple Hill. Once the site has been restored, it could be included in the Norton Guest River Walk project. The Tipple Hill project is supported by the City of Norton, the Virginia Department of Mines, Minerals and Energy, the Virginia Department of Environmental Quality and the Upper Tennessee River Roundtable.

Moving Forward

This settlement offers our organizations a unique opportunity to resolve pollution from both an active mine and from legacy mining on land owned by a large landholding company. Large swaths of land in Southwest Virginia are owned by companies like Penn Virginia that lease land to timber, coal and gas companies for resource extraction. These landholding companies often escape liability when problems arise from the activities on the land.

Several mechanisms exist for addressing water pollution and other problems associated with coal mining. On active mines, including those undergoing reclamation, the coal company is responsible for monitoring conditions and addressing problems that arise. The state oversees this monitoring to make sure the law is enforced, but a lot of problems still occur.

Problems arising from mines that were closed prior to passage of the Surface Mine Control and Reclamation Act (SMCRA) are eligible for federal Abandoned Mine Land (AML) funding. There is a fairly large amount of money available through the AML reclamation fund, but not enough to cover every problem left over from these pre-SMCRA mines. Mines permitted after the passage of SMCRA include bonds to cover the cost of reclamation should the company fall into bankruptcy. Unfortunately, in many instances, bonding has proved insufficient for proper reclamation, especially as many coal companies go bankrupt in close succession.

In many cases, it is difficult to determine exactly how water pollution arose. Many areas around Central Appalachia have been mined underground, surface mined prior to SMCRA, and surface mined after SMCRA. Add gas well drilling to that mix, and it becomes very difficult to pinpoint the individual companies responsible. Many people, including all of us at Appalachian Voices, primarily want to see water problems cleaned up, regardless of who’s responsible. But with limited resources for cleanup, identifying liability can be a critical part of addressing the sources of water pollution.

Moving forward, we’re going to have to identify multiple resources – funding, expertise, and local knowledge – to help us restore Central Appalachia.

Stay informed by subscribing to the Front Porch Blog.

Historic Clean Water Act Settlement in KY

Tuesday, February 16th, 2016 - posted by interns

Following a five-year legal battle, Appalachian Voices and our partners finalized a historic settlement with Frasure Creek Mining and the Kentucky Energy and Environment Cabinet in December. The settlement resolves years of Clean Water Act violations numbering in the thousands at the company’s surface coal mines in eastern Kentucky. The violations include duplicated water pollution monitoring reports, failure to report pollution, and exceedences of pollution permit limits.

The settlement includes a $6 million fine – the highest ever entered by Kentucky against a coal company for environmental violations. In the settlement, Frasure Creek admits to the violations and agrees to immediately pay $500,000. If the company defaults on payment, it will be liable for the full $6 million fine. In addition, if Frasure Creek, which is currently not mining in the state, or its owners want to resume mining, they must pay $2.75 million before a permit application will be processed.

“This settlement should send a strong signal to the new administration that citizens can and will hold the state accountable for vigorously enforcing laws against polluters to ensure the health of our waters and communities,” said Erin Savage, our Central Appalachian Campaign Coordinator.

The settlement came as the newly elected Bevin administration took office, setting a critical benchmark for new Secretary of Energy and Environment Charles Snavely, who was vice president at International Coal Group when Appalachian Voices and partners discovered similar Clean Water Act violations at that company.

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.
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.
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.

Stay informed by subscribing to the Front Porch Blog.

EPA May Take Over Cleanup of Asheville Superfund Site

Wednesday, December 9th, 2015 - posted by interns

Civic action may influence the cleanup of a Superfund site that has been contaminating groundwater with toxic waste in south Asheville for decades.

From 1959 to 1986, the electronic manufacturing plant CTS of Asheville buried significant amounts of trichloroethylene. The U.S. Environmental Protection Agency listed the area Superfund in 2012, and in the years since CTS Corporation has unsuccessfully challenged personal injury claims from individuals living nearby.

At a public meeting in mid-October, the EPA supported public comments calling for an expansion of the single acre CTS initially included in its cleanup plan. Craig Zeller, EPA project manager of the site, said that the agency is weighing whether to accept the plan or to manage the cleanup themselves, which would triple the corporation’s bill and may delay the cleanup, the Asheville Citizen-Times reported. At CTS’s request, the EPA gave the corporation another month to revise its cleanup plan. A decision about how the EPA will proceed is expected in January, according to the Citizen-Times. — Eliza Laubach

NC DEQ’s blatant bid for control

Tuesday, December 8th, 2015 - posted by Ridge Graham

State agency clashes with the EPA and Coal Ash Management Commission

Donald van der Vaart, Secretary of the N.C. Department of Environmental Quality

Donald van der Vaart, Secretary of the N.C. Department of Environmental Quality

Over the past few months, the North Carolina Department of Environmental Quality has seemed determined to have complete environmental regulatory control of the state, showing little regard for federal or public input.

In this endeavor, DEQ has taken every chance it can to highlight how external forces, including citizens groups and the U.S. Environmental Protection Agency are simply getting in its way. Upholding the best interests of North Carolina’s citizens and the environment only becomes a priority when the agency is threatened with losing power.

Rejecting the Clean Power Plan

DEQ joined a lawsuit with more than two dozen of the nation’s largest carbon-emitting states against the EPA’s Clean Power Plan. In October, DEQ submitted a proposal that would only address coal-based emissions because it believes the first component of the Clean Power Plan — improving coal fired power plant efficiency — is the only aspect the EPA has the legal authority to regulate under the Clean Air Act.

TAKE ACTION: Demand a REAL Clean Power Plan for North Carolina.

But if the Clean Power Plan survives in court, and the EPA rejects North Carolina’s plan, federal regulators can intervene in North Carolina’s emission reductions process. So, in case their strategy fails, state officials plan to submit an alternate plan that aligns with the EPA’s proposal.

EPA threatens to take away DEQ’s permitting authority

This year, DEQ permitted a cement plant in Wilmington that would emit more than 5,000 tons of particulates, mercury and other air pollution annually. The agency also OKed a quarry in Blounts Creek that would discharge up to 12 million gallons of waste a day into the Pamlico River. Residents of these areas, along with coastal environmental advocacy and conservation groups, challenged these permits. The state dismissed those challenges on the grounds that the groups did not have standing.

The EPA sent a letter to DEQ Secretary Donald van der Vaart stating that the inability of citizens to appeal permits was troubling. The letter warned that if DEQ continued to skirt federal regulations, the EPA would revoke its authority to issue pollution permits under the Clean Air Act and Clean Water Act.

DEQ responded by shifting the blame to a court decision and presented a list of regulations required by the EPA but not by state law — insinuating that the public process for challenging permits is less burdensome on the state level. State officials said they have no intention of losing permitting authority.

DEQ takes on the Coal Ash Management Commission’s responsibilities

UPDATE: A draft summary by DEQ classified 27 of Duke Energy’s 32 coal ash ponds in North Carolina as posing a “high” or “immediate” risk. If the ratings stand when they are finalized on Dec. 31, Duke would have to excavate the coal ash from those sites.

In another isolationist move, DEQ wants to move forward on the priority classification of coal ash containment sites without the Coal Ash Management Commission. But the commission was created by the Coal Ash Management Act to be housed under the N.C. Department of Public Safety because the General Assembly determined that DEQ was ineffectual and untrustworthy in regulating coal ash.

These site classifications will determine timelines for the cleanup of coal ash at each site, with up to a decade of difference in cleanup response. Sites deemed low priority could be closed using “cap-in-place,” a method that would leave nearby waterways and communities at risk. The commission has 60 days to review the classifications before they go into effect.

However, the state Supreme Court has not yet ruled on Governor Pat McCrory’s lawsuit challenging appointments to the commission, so the group is unable to reach a quorum. When Commission Chairman Michael Jacobs wrote a letter to McCrory and legislative leaders to point this out, van der Vaart responded to say DEQ has it under control.

“Fortunately, legislators had the foresight to include provisions in the coal ash law that prevent delays to the cleanup process including a provision that ensures the prioritization and public participation processes can proceed in the absence of the Coal Ash Management Commission,” van der Vaart wrote.

He did not mention why the commission was not housed under DEQ in the first place.

DEQ blames EPA for delay in coal ash cleanup

DEQ is currently making a public fuss about the EPA taking time to review a state-issued permit to dewater the coal ash pond at Duke Energy’s Riverbend Steam Station in Mount Holly, N.C. DEQ claims that this is the fifth permitting delay this year from the EPA, and that North Carolina is receiving different treatment than other states with regard to its coal ash cleanup projects.

Duke Energy's retired Riverbend Steam Station, Photo from Flickr.

Duke Energy’s retired Riverbend Steam Station, Photo by Duke Energy, licensed under Creative Commons.

Duke’s plants are permitted a discharge rate of coal ash pond water as part of a multi-step treatment process. The nearby bodies of water, many of which supply drinking water to nearby cities and towns, are monitored to determine how much impact the discharge has on the surrounding environment and watershed. DEQ is rushing to dump the entirety of the coal ash pond water into Mountain Island Lake, which is already polluted from the coal ash ponds at the Riverbend plant.

Water samples taken from Mountain Island Lake in 2013 indicated there were levels of constituents in the surface water that exceeded public health standards. Tissues samples taken from fish caught in the lake were found to have high levels of heavy metals, which led to a state-issued fish consumption advisory. Mountain Island Lake is the drinking water source more than 750,000 people.

With these considerations, is it not reasonable to take more than 15 days to analyze such a permit? Or does DEQ just want to have its way regardless of what happens to the people downstream.

Stay informed by subscribing to the Front Porch Blog.