Posts Tagged ‘Clean Water Act’

Clean Water Laws Wrestle With Coal

Wednesday, August 12th, 2015 - posted by molly

By Molly Moore

America’s clean water laws have hampered the coal industry to varying degrees for decades, with the strength of various laws often determined by political winds. The effectiveness of the Clean Water Act and other laws often depends on whether the regulations reflect the latest advances in science and technology, and whether state and federal agencies have the will and resources to enforce the rules. That saga continues today.

Acid mine drainage flows from a mountaintop removal coal mine into Looney Creek in Wise County, Va.

Acid mine drainage flows from a mountaintop removal coal mine into Looney Creek in Wise County, Va.

Acid Mine Drainage

What: Mining exposes metal sulfides to air and water, which react to form acidic discharges. Affected water can harm or kill aquatic life and is not safe for recreation or drinking.
Where: Generated by surface and underground coal mines — both active and inactive — as well as hardrock mines.
It’s Still Happening: Acid mine drainage was among the 2015 water-quality violations at the KD #2 mountaintop removal mine in West Virginia.
The Law: The Clean Water Act and Surface Mine Control and Reclamation Act require that waterways meet state and federal water quality standards.
The Problem: The Clean Water Act allows mining companies to declare that a natural body of water is not a legally protected waterway but is instead a “waste treatment system,” exempt from the law. In 2002, a change to the Clean Water Act allowed companies to begin using untreated mining waste as construction “fill material.” Also, state enforcement of the federal surface mining law is inconsistent, and acid mine drainage can begin decades after mining ceases, which can leave state governments responsible for cleanup.

Selenium

What: A mineral necessary for life in extremely small amounts, but even low levels of contamination can harm or kill aquatic life.
Where: Affects ground and surface water near coal mines and coal ash ponds.
It’s Still Happening: In a landmark 2012 settlement, Patriot Coal Corp. agreed to phase out its use of mountaintop removal coal mining in order to resolve $400 million in liability for selenium pollution cleanup in West Virginia.
The Law: The Clean Water Act and Surface Mine Control and Reclamation Act require that companies cannot pollute in excess of state and federal water quality standards.
The Problem: In 2013, Kentucky adopted weaker state selenium standards approved by the U.S. Environmental Protection Agency. Appalachian Voices and partner organizations filed a lawsuit challenging Kentucky’s changes. And in May 2014, the EPA proposed a new federal standard that is less protective of aquatic life than the current standard.

Total Maximum Daily Loads

What: The amount of a pollutant that a waterway can tolerate while meeting water quality standards.
Where: TMDLs can be calculated for any pollutant in any impaired waterway.
It’s Still Happening: Virginia regulators set a TMDL for the South Fork Pound River. Citizens groups, including Appalachian Voices, alleged in a 2014 lawsuit that four mines owned by Red River Coal Company were violating their permits because the company’s discharges exceeded the TMDL for the entire watershed.
The Law: The Clean Water Act requires that states keep a list of impaired waterways and calculate how much of each pollutant each of those water bodies can safely handle.
The Problem: Many states have not completed their TMDL obligations. Kentucky, for example, had only assessed a quarter of state rivers and streams as of 2012. Of those, 67 percent were impaired, but officials set TMDLs for just 11 percent of those streams.

Erin Savage of Appalachian Voices collects a sample from Fields Creek following the 2014 slurry spill. Testing revealed high levels of contaminants including MCHM.

Erin Savage of Appalachian Voices collects a sample from Fields Creek following the 2014 slurry spill. Testing revealed high levels of contaminants including MCHM.

Coal Slurry

What: Sludge leftover from washing coal, this mixture consists of water, coal dust, clay and chemicals, and includes toxic heavy metals.
Where: Stored in massive, often unlined impoundments, and has also been injected into underground mines. Leaches into ground and surface water.
It’s Still Happening: Studies from 2012 show that underground slurry injections contaminated drinking water in Prenter, W.Va. In 2013, the Brushy Fork slurry impoundment was permitted to increase its capacity to 8.5 billion gallons. And in 2014, more than 100,000 gallons of slurry spilled into Fields Creek at a West Virginia coal processing plant.
The Law: The Mining Safety and Health Administration is responsible for the structural safety of a slurry impoundment, and the Clean Water Act requires state and federal enforcement of water quality standards.
The Problem: State and federal enforcement of water pollution standards can be weak and intermittent, and MSHA-inspected impoundments have failed in the past, raising concerns about dam stability.

An unlined coal ash pond at the now-shuttered Riverbend Steam Plant in Mt. Holly, N.C. Toxic seeps from the ash ponds are contaminating nearby groundwater.

An unlined coal ash pond at the now-shuttered Riverbend Steam Plant in Mt. Holly, N.C. Toxic seeps from the ash ponds are contaminating nearby groundwater.

Coal Ash

What: The waste left over from burning coal for electricity, coal ash contains 25 heavy metals and other chemicals.
Where: Often mixed with water and other industrial waste and stored in unlined impoundments near power plants, but can also be kept dry and stored in landfills. Dry ash contributes to air pollution, and liquid storage can infiltrate ground and surface water.
It’s Still Happening: Contamination of groundwater has occurred near all of North Carolina’s coal ash ponds. Between April and mid-July of 2015, the state health department deemed 301 wells near coal ash ponds unfit to drink (see map). Duke Energy denies that the contamination is related to its ash ponds. Read about the experience of one woman living near coal ash.
The Law: The EPA established the first federal regulations for coal ash in 2014. North Carolina passed its own regulations earlier that year following an impoundment failure that dumped 39,000 tons of ash into the Dan River.
The Problem: Federal rules do not classify coal ash as a hazardous waste. States are not required to adopt the EPA’s new standards, nor are those standards federally enforceable. The federal rule also leaves much of the responsibility for identifying coal ash contamination and seeking legal protection to citizens.

Power Plant Wastewater

What: Wastewater from coal-fired power plants includes heavy metals, carcinogens, neurotoxins and other pollutants.
Where: Rivers, streams, lakes and ponds near coal-fired power plants. Comprises half of all industrial surface water pollution, and contributes to problems such as high mercury and lead levels in fish.
It’s Still Happening: From 2008 to 2011, Eden, N.C., noticed harmful trihalomethanes in city drinking water. Investigation revealed that a nearby coal-fired power plant was releasing bromides into the Dan River, which react with water-treatment chemicals to form trihalomethanes — compounds linked to bladder cancer. In June 2015, Duke Energy settled with Eden and a nearby town.
The Law: Under the Clean Water Act, EPA regulates industrial pollution of surface water, and sets maximum levels for contaminants in drinking water under the Safe Drinking Water Act.
The Problem: The rules governing power plant wastewater were last updated in 1982, and do not regulate heavy metals and a range of other pollutants. In April 2013, the EPA proposed a range of scenarios for updated regulations — two would lead to a 96% reduction in pollution, while others include modest reductions in some pollutants and no reduction in arsenic and lead levels. The agency intends to finalize the rules by Sept. 30, 2015 and is currently accepting public comments. Submit a comment here.

Read about the newly released draft of the Stream Protection Rule here.

Energy Report News Bites

Thursday, July 30th, 2015 - posted by Laura Marion

Air Pollution Standards Challenged in N.C.

by Eliza Laubach

The Federal District Court of Appeals rejected North Carolina’s attempt to bypass air pollution standards concerning fine particle pollution. The state waited too long to contest a standard set forth by the Environmental Protection Agency in 2010 that limits increases in soot, largely emitted by coal-fired power plants or motor vehicles.

The Southeast’s First Utility-Scale Wind Farm Breaks Ground

by Eliza Laubach

When North Carolina’s first utility-scale wind farm begins operations on the coast by the end of 2016, it will be funded not by Duke Energy, but by Amazon.

The online retailer has two cloud-computing centers, in Virginia and Ohio, that will tap into Duke’s grid for power, but Amazon cannot sell the energy in North Carolina due to restrictions on third-party electricity sales.

Clean Water Act Clarified

by Cody Burchett

The U.S. Environmental Protection Agency and the Army Corps of Engineers issued the final Clean Water Rule this past May, reducing the scope of waterways subject to the Clean Water Act and reinforcing exemptions that have legalized toxic water pollution since 2001. The majority of drainage ditches and artificial lakes used for livestock will no longer be regulated. Coal and agricultural industries retain permission to convert streams into waste impoundments. Eight states, including West Virginia and Kentucky, have criticized the new rule as overbearing and filed a federal lawsuit in June.

A moment of truth for Kentucky’s coal regulators

Thursday, July 30th, 2015 - posted by Tarence Ray
A striking case of corruption related to mine inspections in Kentucky led to the recent criminal conviction of former Democratic state representative Keith Hall. But questions remain about how deep the conspiracy goes.

A striking case of corruption related to mine inspections in Kentucky led to the recent criminal conviction of former Democratic state representative Keith Hall. But questions remain about how deep the conspiracy goes. Photo from LRC (Ky.) Public Information.

In June 2013, mine operator and Kentucky state representative Keith Hall went to the Kentucky Energy and Environment Cabinet with a complaint.

Kelly Shortridge, a mine inspector with the Division of Mine Enforcement and Reclamation in Pikeville, had been soliciting Hall for bribes to ignore violations on Hall’s Pike County surface mines.

Hall told two cabinet officials that he had already paid Shortridge “a small fortune,” and that the mine inspector “liked the Benjamins.” A report was drawn up, forwarded to the cabinet’s investigator general and Secretary Len Peters, and went nowhere.

The FBI began investigating the matter when the Lexington Herald-Leader published Hall’s complaint report through an open records request. In June, Hall was found guilty of bribing Shortridge to ignore Hall’s safety and environmental violations.

During the trial, the bureau submitted evidence that strongly suggests Keith Hall was not the only operator paying Kelly Shortridge. Shortridge himself has admitted to taking bribes from other Pike County operators.

So how deep does the conspiracy go? That’s the question many are asking in the wake of Hall’s trial. The Herald-Leader published a recent editorial that pointed out the familiar territory here:

This is not the first time questions have arisen about the Pikeville office of the Division of Mine Reclamation and Enforcement where Shortridge, an inspector for 24 years, worked.

Other Pikeville-based inspectors allowed a surface mine (not owned by Hall) to operate without a permit for 18 months, until July 2010, when rain dislodged the unreclaimed mountain and flooded out about 80 families. One of the inspectors retired a month later.

Remember, too, that the division went years without penalizing coal companies for filing bogus water pollution reports by copying and pasting the same data, month after month.

This falsified water pollution data was only discovered after a coalition of environmental and citizen groups including Appalachian Voices discovered water monitoring reports that the department had neglected to review for over three years. The fact that the FBI had to find out about Hall’s allegations by reading the newspaper – and not through the cabinet itself – reveals a similar pattern of negligence.

How committed is the cabinet to enforcing Kentucky’s environmental and safety regulations around mining? The answer may lie in the phenomenally small salary that the state was paying Shortridge at the time of his 2014 resignation: $45,160 a year.

This may seem like an insignificant detail, but it speaks volumes about how our regulatory systems function, what they prioritize, and what motivates the individuals who operate within them. Shortridge was using his small salary, in addition to the bribes he was taking from Hall and others, to pay for his wife’s medical bills. It’s impossible to speculate about his personal character, but it does seem clear that he was responding to a specific set of material conditions in a way that most individuals on that kind of salary – and in that kind of position – very likely would.

Without much incentive to enforce existing regulations, and knowing that it pays more to cozy up to the industry than to fight it, we really must ask: how many other Kelly Shortridges are out there? This doesn’t seem like an unreasonable question to ask of a regulatory system that, at best, lacks the political capital and material resources to enforce violations, and, at worst, is overseen by the very mine operators it’s supposed to be regulating. (Before being voted out of office in 2014, Keith Hall was the vice chairman of the House Natural Resources Committee.)

Finally, Keith Hall’s remark that Kelly Shortridge “liked the Benjamins” – an incredibly condescending statement from a man who once appropriated his own county’s coal severance tax to the benefit of one of his companies – is revelatory. It hints that there are boundaries to what is and what isn’t acceptable within relationships between the coal industry and the state: Shortridge was getting ambitious; his greed was somehow different than Hall’s. Keep in mind that this was confessed to two cabinet officials, mob-style, as if Shortridge was breaking a set of established rules. Hall needed Shortridge until he didn’t, and then sold him down the river when he became an annoyance.

Now that they’re both paying for breaking the rules, will Governor Steve Beshear’s administration adequately investigate further possible corruption? It unfortunately doesn’t look likely.

As the Herald-Leader editorial notes, “This should be a moment of truth, but history tells us not to expect an aggressive self-examination of the state agency’s love affair with the coal industry.”

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How much progress are we making on ending mountaintop removal?

Wednesday, July 15th, 2015 - posted by Erin
Last week, the U.S. Energy Information Administration pointed to a steep decline in coal produced by mountaintop removal mining. But much more work is needed to truly end destructive mining practices in Central Appalachia.

Last week, the U.S. Energy Information Administration pointed to a steep decline in coal produced by mountaintop removal mining. But much more work is needed to truly end destructive mining practices in Central Appalachia.

Last week, the U.S. Energy Information Administration reported that surface coal production nationwide decreased about 21 percent between 2008 and 2014, while production from surface mines that include mountaintop removal mining in three central Appalachian states had decreased 62 percent.

At first, this seems like a huge win in the fight against mountaintop removal mining, a practice that is devastating to community health and the environment, and yields few jobs compared to traditional mining practices. While it is a step in the right direction, declining production is not a sufficient measure of the ongoing human and environmental impacts of mountaintop removal.

Closer examination of the data calls into question the adequacy of the legal definition of “mountaintop removal” and, more importantly, demonstrates that much more work is needed to truly end destructive mining practices in Central Appalachia.

First, let’s look at the numbers reported by the EIA. The post, published on the agency’s Today In Energy blog, opens by saying, “Coal production from mines with mountaintop removal (MTR) permits has declined since 2008, more than the downward trend in total U.S. coal production.” While this is true, comparing the decline in mountaintop removal production to the decline in nationwide surface production (62 and 21 percent, respectively) gives the false impression that mountaintop removal, in particular, is on its way out. However, when you compare the decline in mountaintop removal production to the decline in surface mine production only for Central Appalachia, the picture looks much different: surface mine production in Central Appalachia has declined by 55 percent from 2008 to 2014.

With this new information, it becomes apparent that mountaintop removal production has not declined much more than surface mining on the whole in Central Appalachia. Given the similarity, we can attribute the decline in mountaintop removal largely to the same market forces that are leading to a decline in all coal mining in Central Appalachia.

The EIA report also relies on the Surface Mine Control and Reclamation Act’s (SMCRA) narrow definition of what constitutes mountaintop removal mining — essentially, a surface mine “running through the upper fraction of a mountain, ridge, or hill” that is exempt from returning the land to “approximate original contour” because the new land use is intended to be of equal or better economic or public value. The problem with this definition of mountaintop removal is that many Central Appalachian surface mines that cross ridgelines and employ many of the same problematic practices — large-scale blasting, mining through streams, and valley filling — are not, under SMCRA’s narrow definition, considered mountaintop removal mines.

The reality on the ground is that the rugged terrain of Central Appalachia makes it difficult to conduct any large-scale surface mine without mining across a ridgeline. Take for example the recently permitted Jim Justice-owned surface mine in McDowell County, W.Va. The Big Creek Surface Mine certainly cross multiple ridgelines and will construct a valley fill within half a mile of a Head Start preschool, yet this mine is not considered a mountaintop removal mine by either the federal government or the state of West Virginia. Furthermore, the valley fill does not require a 404 permit under the Clean Water Act, as it is not being constructed in public waters of the United States.

These facts mean there is little the local community, largely unsupportive of the mine, can do to stop it. Additionally, reclamation of the site requires that the company return the land to its “approximate original contour.” That phrase has never been clearly defined, however, so the land will be returned to a much lower elevation, lacking the fully functioning forest and ecosystems present before mining.

Another issue is that measuring mountaintop removal only by production and permit designation does not lead to a full accounting of the destruction done to the land as a whole.

Back in April, Appalachian Voices undertook a mapping analysis to look at how surface mines are impacting local communities. We had noticed that, even though mining is declining in the region, we are still regularly contacted by impacted residents. So we set out to determine if surface mining was moving closer to communities, and through our Communities at Risk project, we confirmed that mines are in fact encroaching even more on local residents.

A view of the Communities at Risk mapping tool. Click to explore the map on iLoveMountains.org.

A view of the Communities at Risk mapping tool. Click to explore the map on iLoveMountains.org.

To complete this analysis, we identified surface mines across the region using satellite imagery and other data to differentiate between mining and non-mining areas. We excluded areas less than 25,000 square meters. This left us with a map layer of large surface mines, including mountaintop removal mines (whether designated as such by any government agencies, or not), across the region.

This data set is useful not only for our Communities at Risk tool, but also for other analysis on the trends in surface mining in Central Appalachia over time. Using this map, we determined the current amount of land disturbance due to mining — basically any area that is barren due to active mining, recently idled or abandoned mines, or mines not yet reclaimed — has declined from 148,000 acres in 2008 to 89,000 acres in 2014.

Unfortunately, we can’t directly compare yearly production numbers to the number of acres disturbed to yield that production. Land within a surface mine is constantly being shifted, blown up, backfilled, and regraded. Basically, not all barren areas are actively producing coal at any given time. Many areas stay barren for years, while other areas of the mine are producing coal (despite legal requirements for contemporaneous reclamation).

The comparison we can make is that the amount of currently barren land is not falling as fast as production numbers. The extent of surface mined area (whether active, idled, or just unreclaimed) has declined about 40 percent, while production from Central Appalachian surface mines has declined 55 percent.

Essentially, we have more unreclaimed land in 2014, per ton of coal produced in 2014, than in previous years. This is likely due to a number of factors:

  • As thinner, deeper seams are mined, more land must be disturbed per ton of production;
  • Recently, mines have been idled, or even bond-forfeited due to market pressures; and
  • Reclamation is a slow and expensive process.

Mathew Louis-Rosenburg, a West Virginia resident, sums up the problem of only considering the EIA numbers without on-the-ground context:

“On the ground, we measure [mountaintop removal] in acres lost, in water contaminated, communities harmed. The steep decline in surface mine productivity means that a lot more land is being disturbed to get that smaller tonnage and idled mines still contaminate water at a similar rate to active ones. The battle here is far from over and stories like this just lead more and more resources and support to leave the region because people from elsewhere think that we have won already.”

It is beyond time for the Obama administration to take action to end destructive surface mining across Central Appalachia. We are hopeful that a strong Stream Protection Rule will go a long way toward protecting the streams and the people of the region. The Appalachian Community Health Emergency Act (H.R. 912) could also go a long way in protecting communities from health impacts confirmed by mounting scientific evidence.

Unfortunately, the likelihood of success on either of these actions decreases every time misleading evidence suggests this problem has gone away. You can help prevent this by telling the Obama administration to end mountaintop removal and by keeping this conversation going among a national audience. We owe that to the people of Central Appalachia.

Residents Near Duke Ash Ponds Told To Not Drink Their Water

Monday, June 15th, 2015 - posted by Cody Burchett
Residents impacted by coal ash join together with concerned citizens to rally outside the annual Duke Energy shareholder’s meeting in Charlotte on May 7. Photo courtesy of NC WARN

Residents impacted by coal ash join together with concerned citizens to rally outside the annual Duke Energy shareholder’s meeting in Charlotte on May 7. Photo courtesy of NC WARN

Utility pleads guilty to separate water pollution charges

By Sarah Kellogg

Jeff Keiser and his wife, Kim, have lived in a small neighborhood in Belmont, N.C., near Duke Energy’s G.G. Allen power plant, for 15 years. Although their community is surrounded on three sides by coal ash, the toxic by-product of burning coal, the Keisers have used their tap water just like anyone else. But that changed in late April when they and their neighbors started receiving letters from the state health department advising them not to drink or cook with their water.

“It was pretty frightening for us to hear all of our neighbors getting do not drink letters from the state,” recalls Keiser. “We had been drinking the water with no worry at all, now we’re scared for our health.”

The do-not-drink orders were a result of mandatory water tests conducted by Duke Energy and required by North Carolina’s Coal Ash Management Act. As of late May, wells had been tested near eleven of Duke’s fourteen coal ash pond locations. Of the 207 wells tested by May —all located within 1,000 feet of the ponds —191 were deemed unsafe to drink. Most of the wells tested high for vanadium or hexavalent chromium, both known carcinogens. The Belmont community received 83 do-not-drink orders, the most of any location.

Duke Energy claims that the elements found in the wells are naturally occurring and not a result of groundwater contamination from coal ash ponds, although the utility agreed to supply affected residents with bottled water until the source of the contamination is determined.

Keiser and other residents feel certain that Duke is to blame for their bad water. “I do feel like it’s their ash ponds that have created this whole mess,” he says. His neighbor, Barbara Morales, who also received a do-not-drink notice, told the L.A. Times, “Duke just won’t admit their coal ash is poisoning my water, but they need to take responsibility.”

Two weeks after the first round of water tests was released, Duke Energy pleaded guilty in federal court to nine violations of the Clean Water Act at five of its North Carolina coal ash sites and agreed to pay a $102 million fine. The lawsuit was unrelated to the well water results, but rather was the result of a federal investigation that began after Duke spilled 39,000 tons of coal ash into the Dan River in February 2014.

Separate lawsuits against Duke, filed by the state in 2013 for violations of the Clean Water Act at all 14 of the utility’s North Carolina coal ash sites, are still pending.

Duke’s guilty verdict and the do-not-drink orders come on the heels of a controversial wastewater discharge permit renewal for three of Duke Energy’s N.C. plants, including G.G. Allen. The state’s Clean Water Act lawsuits against Duke charge that the utility is violating the discharge permits at all of their plants due to toxic seeps from their coal ash ponds leaking into surface water and drinking water. Although the state is suing Duke Energy for the violations, it issued new draft permits that would make all current and future seeps from the coal ash ponds legal. As of publication, the permits have not been finalized, but hundreds of citizens submitted comments in April urging the state to limit the amount of coal ash pollution Duke Energy can discharge.

In Belmont and other communities, residents continue to process the news that their well water is undrinkable. “If we wanted to move, we’d feel obligated to let the purchasers of the house know about the issue with Duke and the drinking water in our neighborhood,” Keiser reflects. “That is very scary because this is our most valuable asset.”

Permit Renewal Raises Questions for Radford Arsenal

Monday, June 15th, 2015 - posted by Cody Burchett
The Radford Army Ammunition Plant in Virginia  manufactures munitions for the U.S. Army. Photo courtesy U.S. EPA

The Radford Army Ammunition Plant in Virginia manufactures munitions for the U.S. Army. Photo courtesy U.S. EPA

Air pollution concerns spark a controversy in the New River Valley

By Andrea Brunais

Perhaps in a parallel universe, these four things don’t sit within walking distance: a toxin-emitting munitions plant, a mountain river, an elementary school playground and Kentland Farm, where Virginia Tech students tend plots of fruits and vegetables.

The New River, famous for its snaky wildness, is a favorite of kayakers and tourism-boosters who tout its unusual south-to-north flow and its ancient origins. Biodiversity flourishes near the river, whose features include breathtaking rock cliffs and rim-top ledges. Its three-state span – North Carolina, Virginia and West Virginia – hosts vastly different environmental issues along its length.

In Virginia’s Pulaski and Montgomery counties near the town of Blacksburg, a 4,600-acre U.S. Army munitions plant dating to 1941 straddles the New River. Bill Hayden of the Virginia Department of Environmental Quality confirms that the Radford Army Ammunition Plant, operated by a private contractor to manufacture munitions for the U.S. Army, is “one of the top emitters of toxic chemicals in the state.”

According to the DEQ, some nine million pounds of toxins are released from the plant annually, most being nitrate compounds stemming from the process that neutralizes acids used to make explosives. In the agency’s Toxic Release Inventory report for 2013, issued this spring, the arsenal once again topped Virginia’s list of polluters; the annual report has frequently listed the plant.

By law, operators are permitted to discharge toxic substances, mostly nitrates, into the river. According to the U.S. Environmental Protection Agency, the plant’s toxic emissions include nitroglycerin, lead, ammonia and nitric acid. Other hazardous wastes identified at the plant include remnants of TNT, chromium, cadmium and perchlorates.

The operators are also issued permits to burn some of the hazardous waste left over from the manufacturing process. Burns take place out in the open, in sight of the river and close to an elementary school. The DEQ issued a warning letter to the facility in April 2015 when an open burn produced 4 percent more lead than the permit allows.

The plant was cited as a top polluter in a 2012 report on the nation’s most contaminated waterways from the Environment America Research and Policy Center, but studies repeatedly deem the plant’s emissions — at least those that are measured — in compliance with environmental laws and health standards. Regulators from the DEQ as well as Army staff defend the strictness of the standards.

The latest all-clear regarding water quality comes from the Centers for Disease Control and Prevention. A study released in January concluded that the plant’s discharges “cannot harm people’s health” via groundwater used for local residential drinking water.

According to Rick Roth, president of the local Friends of the New River and professor of geospatial science at Radford University, the CDC’s conclusion does not surprise him. “Are they the kind of toxins that bioaccumulate?” asks Roth of the plant’s nitrogen discharges into the New River, and immediately answers, “No.”

But according to a former Virginia DEQ employee who quit his job citing lax enforcement, concerns over the plant’s history of handling hazardous materials on the premises are legitimate.

The former regulator, who spoke on condition of anonymity, says nitrates may not measurably contaminate the river even when permitted discharge limits are exceeded because the river is huge enough to easily swallow up the compounds. But he points to what he calls a fundamental flaw in the agency’s methodology: “The DEQ’s entire approach is that dilution is the solution,” he says.

Which is better, he asks: Halting the discharge of millions of pounds of contaminants into a water body, or continuing the polluting practices because of the theory that the New River is so large and flows so fast that the toxins quickly seem to leave no trace?

A Hazardous Breeze

Some environmental advocates believe the battleground should be air quality rather than water quality. The plant’s DEQ permit, which allows 8,000 pounds of propellant to be burned in the open air each day, is up for renewal at the end of June.

According to Peter deFur, an environmental scientist and instructor at Virginia Commonwealth University, air quality measurements in nearby neighborhoods have never been collected and are needed.

Dr. Jill Dyken — the co-author of the CDC report that examined groundwater near the plant — agrees, stating that the agency “recognizes the lack of air sampling results as a data gap.” She further writes in an email that the agency’s next step is to “evaluate the community’s exposures to contaminants in air.”

Blacksburg resident Devawn Oberlender, spokesperson for Environmental Patriots of the New River Valley, campaigns to end the arsenal’s open burns. During the burns, contaminated material is doused with diesel fuel. Plant employees go behind a wall as the burn begins.

“All of this takes place 150 feet from the New River – just a mile and a half upwind from Belview Elementary School,” Oberlender says.

On the plant’s website, the Army states that safety procedures “include red flashing lights and a warning speaker system to notify people on the river that a burn is going to occur.”

Also adding to the air pollution is an aging 1941 coal-fired power plant that generates most of the arsenal facility’s electricity. According to Rob Davie, the Army’s chief of operations at the plant, getting a new, cleaner plant within two years is one of the “priorities” of the Army.

Cleanup Questions

Greg Nelson, a Virginia Tech student whose doctoral dissertation focuses on public participation in the hazardous-waste cleanup at the arsenal, seeks to address the risks from burning thousands of pounds of what are called “munitions constituents.” He says, “The health effects have never been documented because there’s never been a health study.”

According to Nelson and deFur, the half-century track record as a major emitter of contaminants provides ample reason to investigate the Radford plant for Superfund status. But the EPA-supervised cleanup plan for the facility stops short of classifying the plant as a Superfund site, and Justine Barati, director of Public and Congressional Affairs Joint Munitions Command for the Army, supports the status quo, responding in an email that Superfund status does not apply.

For Nelson and deFur, Superfund classification could be a big part of a long-term solution. According to deFur, if agency regulators were to declare the arsenal a Superfund site, a full-scale cleanup could take place with federal agency involvement “in a day-to-day way,” he says. Public scrutiny would be increased as well, Nelson adds.

What’s more, deFur says, Superfund oversight would bring more attention to groundwater cleanup. “The data on what chemicals are going where are not sufficient to confirm that the existing problem is not larger and not reaching the New River,” he says.

At a recent public meeting on May 28 mandated by the cleanup plan, Oberlender and others came armed with a December 2014 report from the EPA’s National Enforcement Investigations Center that was publicly released the day before. The report, which the Environmental Patriots of the New River Valley obtained via a Freedom of Information Act request, outlines violations of four federal statutes including the Clear Air and Clean Water Acts. When asked about the findings at the meeting, Army officials said they were not yet ready to comment.

Alternative Disposal

BAE Systems, the plant’s private-sector operator since 2011, also operates Holston Army Ammunition Plant in Kingsport, Tenn., where the Tennessee Clean Water Network has filed suit against the company and the U.S. military. The lawsuit claims that the Kingsport plant is polluting the Holston River, a drinking water source, with RDX, an explosive chemical that may also be a human carcinogen.

But the Radford plant’s contamination problems predate BAE Systems by decades. Over the years, explosions and major fires have repeatedly occurred. Relatives of people working at the arsenal, who asked to remain anonymous, say the community accepted such incidents because they were thankful for jobs — even though the price paid included spills and releases of toxic chemicals into the soil, water and air.

As the June 29 deadline to begin the renewal process for the plant’s open-burn permit approaches, DEQ spokesperson Hayden says the agency is “evaluating possible alternatives.” The Army’s Davie says the arsenal “will be going to bid” on a project to design an incinerator to replace open burns, but he declines to answer questions about timeline and cost.

Different disposal methods were considered at Camp Minden in Louisiana, where a 2014 proposal to eliminate more than 15 million pounds of an explosive propellant called M6 through open burns spurred public outcry. In May 2015, the EPA approved the Louisiana Military Department’s proposal to hire a contractor to conduct a contained burn.

Oberlender has followed the events at Camp Minden and strives to see the open burns in Radford replaced with safer disposal methods.

“I think there’s more widespread challenge to [the permit renewal] coming than the Army has let on,” deFur says. “The question is, how long is anybody going to put up with the open burning and [with] Radford being one of the largest contributors of nitrogen going into the river?”

As the Army readies for the DEQ’s decision, greater public questioning has upped the ante. “They’ve never had as many people asking about the plant as there are right now,” Nelson says. “There’s more public questioning than the arsenal has ever experienced in its history.”

Keep the Clean Water Act going strong

Thursday, June 4th, 2015 - posted by sandra

Is the Obama administration ready to continue modernizing the landmark law?

After releasing the final Clean Water Rule last week, the EPA should continue modernizing the Clean Water Act by better protecting clean water from power plant and industrial waste.

After releasing the final Clean Water Rule last week, the EPA should continue modernizing the Clean Water Act by better protecting clean water from power plant and industrial waste.

Last week, the U.S. Environmental Protection Agency announced the release of its long-awaited Clean Water Rule, which clarifies the scope of waters protected under the Clean Water Act.

The finalized rule ends a decade of confusion; a 2006 U.S. Supreme Court decision brought into doubt the definition of “navigable waters,” which the EPA had historically interpreted to include areas connected to waters by tributaries or other smaller streams.

As The Los Angeles Times reports:

Before the new rule, up to 60 percent of American streams and millions of acres of wetlands were potentially overlooked by the Clean Water Act, EPA officials say. One in three Americans … use drinking water affected by these sources that lacked clear protection from pollution before the rule change, according to the agency.

Is the Obama administration ready to continue the trend of strengthening and modernizing the Clean Water Act — the crucial environmental law that came about due to levels of water pollution that seem unfathomable today?

As the EPA pursues updating the Effluent Limitation Guidelines, which provide standards on wastewater discharge from power plants, we hope that is indeed the case. Sixty percent of water pollution comes from coal-fired power plants alone, and these guidelines would also include natural gas and nuclear facilities.

The primary reason the EPA is even updating these guidelines is because clean water groups sued the agency for not having updated the rule since 1982.

These out-of-date standards do not contain federally enforceable limits on toxic heavy metals. Any limits are left for individual states to decide; as a result, 70 percent of current Clean Water Act permits for power plants do not have limits for heavy metals.

Even worse, the water pollution from these plants has become more dangerous since many coal-fired power plants have installed air pollution technology that “scrubs” emissions before they leave the smokestack. This is good news for air quality, but not for water quality. The scrubbed pollution has to go somewhere, and that somewhere is in waste impoundments where these pollutants supposedly “settle” to the bottom. Power plants are then allowed to dump water from these impoundments into our river and lakes, which sometimes serve as drinking water sources.

Heavy metals are dangerous at varying levels to wildlife and human health. The industry is also discovering that the chemicals used in the “scrubbing” process can interact with chemicals from drinking water treatment plants to create trihalomethanes, which have been linked to bladder cancer.

The EPA released draft options of the Effluent Limitation Guidelines in 2013 and received more 160,000 comments, most asking for the strong technological options that would create zero waste. The agency is planning to release the final standard this fall. But there is real concern among clean water advocates that the final rule may not pursue the most technically feasible option for stopping pollution from heavy metals and other chemicals, as required by the Clean Water Act.

We are going to need your help to crank up the pressure on the White House to make sure the EPA listens to us water-drinkers as it works to finalize the rule for this fall. Sign up here to receive updates. Follow us on Facebook and Twitter, too.

Duke Energy to close aging Asheville coal plant

Tuesday, May 19th, 2015 - posted by brian

Duke Energy plans to retire its Asheville coal plant and build a natural gas-fired facility in its place. The announcement should be celebrated as progress, but it also represents another precarious step toward a future reliant on fossil fuels.

A plan to “end an era of coal” in Asheville and enter an era of natural gas.

In a surprise announcement that some predicted and many have long advocated for, Duke Energy shared plans today to “end an era of coal” in Asheville, N.C., by retiring the coal-fired power plant that sits on the banks of nearby Lake Julian.

The aging power plant, which began operating in 1964, has been a constant target for Appalachian Voices and many of our allies in North Carolina working to address coal ash pollution and promote investments in cleaner energy.

The company plans to spend around $750 million over the next four or five years to retire the coal plant and replace it with a 650-megawatt natural gas-fired power plant, nearly doubling the current plant’s capacity. The plans also include building solar generation on the site, but it’s unclear how large — or small — the size of the renewable portion of the project will be.

While the news should be celebrated as progress, it also represents another precarious step along a dangerous road that will prolong our region’s over-reliance on fossil fuels and saddle consumers with long-lived investments in natural gas.

Duke, more than any other southeastern utility, has been at the forefront of the coal-to-gas fuel-switching trend, retiring seven of its 14 North Carolina coal plants in the past five years. The utility is also slated to be the largest customer of the proposed 550-mile Atlantic Coast Pipeline, but, in this case, plans to upgrade an existing natural gas pipeline to supply the new plant.

Even though the company has brought on large-scale solar projects in recent years, Duke’s enthusiasm for clean energy doesn’t come close to its eagerness to expand natural gas generation and infrastructure. That fact is reflected in the mixed responses of environmental groups and clean energy advocates to today’s news.

“The retirement of the Asheville Plant is a step in the right direction, but it is a half measure, undermined by continuing reliance on an economically unpredictable and polluting source of power. Duke can do better, and our community deserves better,” a coalition of groups made up of MountainTrue, Sierra Club, Southern Environmental Law Center and Waterkeeper Alliance announced in a joint statement. “We will continue to use every tool at our disposal to fight for clean energy solutions for Western North Carolina.”

According to Duke, electricity demand in the Asheville area has doubled over the past forty years and the Asheville plant is a “must run” facility, meaning it operates around the clock to maintain reliability. But data charted by SNL Energy shows the plant’s capacity factor has been trending down since 2010, likely due to new capacity at the more-economical Cliffside power plant coming online.

Closing the plant will dramatically reduce harmful emissions of sulfur dioxide and mercury, and the new natural gas plant will emit about 60 percent less carbon dioxide per-megawatt hour. But its larger generating capacity could mean overall carbon emissions stay about the same.

The cost of retrofitting the plant’s coal ash ponds to comply with the state’s Coal Ash Management Act is sure to have played a role in the decision to retire the plant. The N.C. Department of Environment and Natural Resources also cited Duke in February for contaminating groundwater at the facility, which could lead to fines.

The Asheville plant is the only facility out of the four deemed “high priority” by the coal ash law that still burns coal. It is also one of the few still-operating plants involved in the federal lawsuit over coal ash pollution that led Duke to plead guilty to nine misdemeanors under the Clean Water Act.

The case for closing the Asheville coal plant is clear. But Duke must do more to meet its promises to North Carolinians. At a time of tremendous opportunity to expand clean energy, America’s largest electric utility has the obligation and more than enough influence to lead.

WV Coal Lab Penalty Upheld

Wednesday, April 8th, 2015 - posted by Dac Collins

The West Virginia Environmental Quality Board upheld a decision by the state Department of Environmental Protection to revoke the certification of Appalachian Laboratories Inc., where employees routinely conspired to violate the federal Clean Water Act.

The Beckley-based water-testing lab had previously appealed the revocation of its state certificate to conduct water testing services for coal companies and other industrial customers, arguing the actions of one employee should not disrupt its entire business. But during the Feb. 25 sentencing hearing of lab employee John Shelton — who will spend 21 months in prison for falsifying water samples — a U.S. judge said, “essentially everyone at the company… participated in some way in this conspiracy.”

Going to Court for Clean Water

Wednesday, April 8th, 2015 - posted by Dac Collins

Federal Lawsuit Filed Against Frasure Creek

In mid-March, Appalachian Voices and our partners in Kentucky sued Frasure Creek Mining in federal court for more than 20,000 violations of the Clean Water Act, which could lead to nearly $700 million in fines.

In 2014, Frasure Creek Mining submitted more than 100 reports to the Kentucky Energy and Environment Cabinet that contained false water monitoring data. These reports are supposed to be used to make sure companies are meeting the water pollution limits in their permits, but when companies turn in false reports, that task becomes impossible.

In the first quarter of 2014, nearly half of Frasure Creek’s water monitoring reports were false — they contained data copied from previous reports. In a few cases, violations were removed from reports when they were duplicated.

A few years ago, Frasure Creek was the top producer of coal from mountaintop removal mines in Kentucky. Although Frasure Creek has stopped mining coal for the time being, its mines continue to produce toxic pollution and the company continues to rack up numerous violations from the state for failing to properly reclaim the mines.

If you think all of this sounds familiar, you would be right. We first uncovered similar false reports from Frasure Creek and two other coal companies almost five years ago. The subsequent legal actions are still ongoing. Late last year, inadequate settlements between Frasure Creek and the Cabinet were thrown out by a Kentucky judge, and that decision is now being appealed. We are also attempting to intervene in the state’s enforcement action for these 2014 violations.

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.