Posts Tagged ‘Clean Water Act’

Apologies for the Dan River spill, guilt for coal ash crimes

Thursday, February 26th, 2015 - posted by brian
Facing federal criminal charges stemming from the Dan River spill and pollution at other sites across North Carolina, Duke will pay for its coal ash crimes.

Facing federal criminal charges stemming from the Dan River spill and pollution at other sites across North Carolina, Duke will pay for its coal ash crimes.

Duke Energy likes to use a tagline that goes something like “For more than 100 years we’ve been providing customers with reliable, affordable electricity at the flip of a switch.”

It’s boilerplate, but it works. So I doubt the company will amend that punchy bit of self-praise to include “and we were recently found criminally negligent for polluting North Carolina rivers with coal ash.”

Even so, a year after the Dan River spill, Duke seems to understand that coal ash pollution has its own chapter in the company’s corporate story. Now, Duke will pay for its crimes.

The bombshell news came in two pieces around the same time last Friday; the U.S. Department of Justice announced the charges and Duke announced it struck a deal with prosecutors. A few days before the big reveal, Duke told shareholders in an earnings report that it set aside $100 million to resolve the federal investigation that began after the Dan River spill.

The company faces nine misdemeanor charges for violating the federal Clean Water Act at multiple coal ash sites across the state. On Friday, the U.S. Attorney’s Offices for the Western, Middle and Eastern Districts of North Carolina each filed charges in their respective federal courts, related to violations that occurred at coal ash ponds owned by Duke in their respective districts.

According to DOJ, Duke was criminally negligent in discharging coal ash and coal ash wastewater from storage ponds its Dan River, Asheville, Lee, and Riverbend plants into North Carolina rivers. Violations related to equipment upkeep were found at the Cape Fear Steam Station, where Duke was cited by the state for illegally pumping 61 million gallons of toxic water from a coal ash pit into the Cape Fear River last year.

The DOJ’s press release makes clear that the filing of charges is not a finding of guilt, and most prominent news outlets left any indication that Duke is guilty of its coal ash crimes out of their coverage. We decided to use the word “guilty” in our press release largely because a proposed plea agreement including millions in fines had been reached.

Read one of the three criminal "bills of information" detailing charges against Duke Energy (PDF).

Read one of the three criminal “bills of information” detailing charges against Duke Energy (PDF).

Also, in a consent to transfer the plea and sentencing proceedings to the Eastern District court, an attorney for Duke wrote: “… the Defendants wish to plead guilty to the offenses charged.”

Of course, Duke steered clear from the words “guilty” or “plea” in its own announcement. But, as the Southern Environmental Law Center’s Frank Holleman told the Charlotte Observer, “When anyone pays $100 million to resolve a grand jury investigation, that indicates something serious happened.”

There’s still a lot of specifics we don’t know about the agreement between prosecutors and Duke. Prosecutors say they won’t comment until after court proceedings where the agreement must be approved by a federal judge.

It’s important to note, though, that this is a plea bargain to resolve a criminal investigation, not a settlement to avoid a civil trial. The proposed agreement includes $68.2 million in fines and restitution and $34 million for community service and mitigation. The fines cannot be passed on to customers, meaning Duke’s shareholders will take the hit.

Importantly, the agreement would also put Duke on probation for five years, during which a court-appointed monitor would ensure compliance with provisions related to training, audits and reporting. According to Duke, the full agreement will be made public if it is accepted by the court.

“We are sorry for the Dan River spill, and remain grateful to our friends and neighbors for your support,” Duke CEO Lynn Good said in a statement. “We are committed to moving forward in a safe and responsible way.”

For a year Duke has been saying sorry to its customers and communities along the Dan River — basically demanding that it be held to a higher standard. So even though the company is no longer in crisis mode, it’s still watching its back as it tries to repair its reputation and move beyond the spill.

The problem of coal ash pollution in North Carolina is far from resolved. According to Duke’s own assessment, 200 seeps at its power plants leak nearly 1 billion gallons of polluted water into streams and rivers every year. Just yesterday, Duke was cited for contaminating groundwater at its Asheville Plant.

In addition to investigating Duke Energy, federal prosecutors subpoenaed current and former employees of the Department of Environment and Natural Resources and the North Carolina Utilities Commission, which used to regulate coal ash ponds. But none of the charges against Duke allege any improper, or illegal, dealings between the company and state regulators.

Without clarification from the U.S. Attorney’s office, it’s unclear whether the grand jury has finished its work, only finding Duke in the wrong, or if an investigation into actions of DENR is ongoing.

“While prosecutors aren’t legally obliged to explain charges they don’t file, in this case the public needs more substantial disclosures,” the Fayetteville Observer wrote in an editorial. “The Justice Department needs to let us know whether a cloud of suspicion remains over DENR.”

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Groups Seek to Ensure Ky. Enforces Clean Water Law

Monday, February 23rd, 2015 - posted by cat

Contacts:

  • Eric Chance, Appalachian Voices, 828-262-1500, eric@appvoices.org
  • Ted Withrow, Kentuckians For The Commonwealth, 606-782-0998 (c), tfwithrow@windstream.net
  • Pat Banks, Kentucky Riverkeeper, 859-200-7442, kyriverkeeper@eku.edu
  • Pete Harrison, Waterkeeper Alliance, 828-582-0422, pharrison@waterkeeper.org
  • Adam Beitman, Sierra Club, 202-675-2385, adam.beitman@sierraclub.org

Frankfort – A coalition of citizens groups today filed a motion to intervene in a state enforcement action against Frasure Creek Mining for violating the Clean Water Act at its coal mining operations in eastern Kentucky. Last November, the groups identified thousands of instances where Frasure Creek had falsified water pollution discharge monitoring reports and sent the company a notice of their intent to sue. In response, the Kentucky Energy and Environment Cabinet filed a complaint against Frasure Creek for these violations in the agency’s administrative court.

The groups are seeking to intervene in the state’s enforcement action to ensure that Frasure Creek is held fully accountable for the violations, and that the state secures sufficient corrective action, which is particularly important because of the company’s past violations. In 2010, citizens’ groups had uncovered similarly falsified discharge monitoring reports by Frasure Creek, and sent the company a notice of intent to sue to enforce the Clean Water Act. The state stepped in, pre-empting the lawsuit, and reached a settlement with Frasure Creek that amounted to a slap on the wrist. The settlement was thrown out by Franklin Circuit Court Judge Phillip Shepherd in December, but the state has appealed.

“The cabinet’s previous enforcement actions were clearly too weak, because Frasure Creek has returned to its practice of covering up pollution violations by re-using old data,” said Eric Chance, Water Quality Specialist for Appalachian Voices. “We want to make sure enforcement is adequate this time.”

“The people of Kentucky deserve clean water, and companies need to know that they can’t hide behind an agency that accepts false reports,” said Ted Withrow, a former cabinet employee, now a volunteer for Kentuckians For The Commonwealth.

“Frasure Creek is not the only company turning in false reports to the state, and the cabinet needs to make an example out of them,” said Kentucky Riverkeeper Pat Banks. “Without accurate information, how can we expect to have real enforcement, or know if our water is safe?”

Today’s motion to intervene was sent by Appalachian Voices, Kentucky Riverkeeper, Kentuckians For The Commonwealth, Waterkeeper Alliance and the Sierra Club. The groups are represented by Mary Cromer of Appalachian Citizens Law Center, attorney Lauren Waterworth, and the Pace Law School Environmental Litigation Clinic.

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Déjà vu in Kentucky clean water cases

Monday, February 23rd, 2015 - posted by eric

frasure_creek

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

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

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

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

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

Both of the cabinet’s previous settlements with Frasure Creek were thrown out by Franklin Circuit Court Judge Phillip Shepherd last December. In a scathing opinion, Shepherd stated that when “one company so systematically subverts the requirements of law, it not only jeopardizes environmental protection on the affected permits, it creates a regulatory climate in which the Cabinet sends the message that cheating pays.”

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

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

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

Criminal charges filed against Duke Energy

Friday, February 20th, 2015 - posted by brian
Duke Energy entered a plea agreement with federal prosecutors to resolve a federal criminal investigation into its handling of coal ash in North Carolina.

Duke Energy entered a proposed plea agreement with prosecutors to resolve federal criminal charges related to its handling of coal ash in North Carolina.

The U.S. Department of Justice has filed criminal charges against Duke Energy for violating the federal Clean Water Act at coal ash sites across North Carolina. The company announced today it has reached a proposed plea agreement with federal prosecutors to resolve the charges.

According to a Duke Energy press release, the plea agreement includes $68.2 million in fines and restitution and $34 million for community service and mitigation.

The charges include multiple misdemeanor violations of the Clean Water Act in connection with last year’s coal ash spill in the Dan River as well as unauthorized discharges at other Duke coal plants in North Carolina. The agreement is subject to review and approval by the U.S. District Court for the Eastern District of North Carolina.

Related stories

Coal Ash Management: Long-awaited, still debatedAppalachian Voice reporter Kimber Ray sums up the state of coal ash management at the federal and state levels.

The agreement does not affect state lawsuits against Duke Energy, in which Appalachian Voices and our partners have intervened. It’s unclear whether the grand jury has finished its work, only finding Duke in the wrong, or if an investigation into actions of the N.C. Department of Environment and Natural Resources is ongoing.

The federal grand jury investigation began last year after 39,000 tons of coal ash spilled from a retired Duke Energy coal plant into the Dan River.

A statement from Amy Adams, North Carolina Campaign Coordinator for Appalachian Voices, and former supervisor with the Department of Environment and Natural Resources:

It’s good to see that federal enforcers have taken this issue seriously by diligently pursuing criminal charges and levying a substantial fine against Duke, and it’s good to see Duke acknowledge its culpability. However, we have yet to see that culpability turn into real action. There are still leaking coal ash ponds at 10 of Duke’s sites, leaving 10 communities in limbo and a lot of ash that must be permanently and safely disposed.

Important questions remain, like exactly how the money will be spent and whether any individuals will be named. But most troubling is the unanswered question of whether DENR was aware of negligence and failed to act, or was unable to recognize the magnitude of the situation in the first place.

Learn more about our work to clean up coal ash pollution. Subscribe to the Front Porch Blog to receive regular updates. 

To protect or prosecute polluters?

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

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

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

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

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

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

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

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

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

Corruption and Enforcement Failures Raise Concern for Clean Water

Friday, December 19th, 2014 - posted by allison

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By Brian Sewell

Recently uncovered conspiracies to violate the Clean Water Act have heightened concerns about corruption in central Appalachia and the effectiveness of state agencies responsible for enforcing the law.

In September, charges were filed against John W. Shelton, a former employee of West Virginia-based Appalachian Laboratories Inc., for tampering with water quality samples collected at surface coal mines in West Virginia between 2008 and 2013 to conceal permit violations and keep customers satisfied. He faces up to five years imprisonment and a $250,000 fine.

A federal investigation into Appalachian Labs is ongoing. But environmental watchdogs quickly noted that this is only the latest example of one of the Clean Water Act’s most important functions being compromised in Appalachia.

The Stigma of “Self-reporting”

Under the Clean Water Act, the U.S. Environmental Protection Agency can regulate pollution discharged directly into surface waters. The agency has authorized 46 states across the U.S., including those in central Appalachia, to issue pollution discharge permits and take action when violations are discovered.

But the system’s success hinges on the honor code of environmental protection: self-reported data. States trust permit holders, who often hire private companies, to collect and test water samples and submit discharge monitoring reports to regulators for review. However flawed, this is the fundamental mechanism used to determine if coal companies and other polluting industries are obeying the law.

State action following John Shelton’s guilty plea has been relatively swift. On Oct. 21, the West Virginia Department of Environmental Protection revoked Appalachian Labs’ certification. The next week, the agency announced that “no permitting decisions will be made without verification of data submitted by Appalachian [Labs].”

The director of DEP’s Division of Mining and Reclamation, Harold Ward, said the decision affects a “wide array” of coal companies operating in West Virginia and all of their pending permits.

An analysis of West Virginia discharge monitoring reports by Appalachian Voices, the publisher of this newspaper, found that Appalachian Labs was responsible for nearly 25 percent of the reports submitted to the state between 2009 and 2014, more than any other company certified in West Virginia.

Appalachian Labs responded by suing the DEP, which they say stigmatized their business to the point customers cannot risk using it for their water monitoring needs. On Nov. 26, a judge overturned the DEP memo requiring additional data for sites using Appalachian Labs and told regulators they must treat the company “the same as any other laboratory.”

Worries Grow Widespread

The story of Appalachian Labs is a striking example in an even more disturbing trend.

In 2010 and 2011, Appalachian Voices, Kentuckians For The Commonwealth, Waterkeeper Alliance and Kentucky Riverkeeper took legal action against three of the largest coal companies in Kentucky for routinely turning in false pollution reports to the state.

During the period they were submitting duplicated monitoring reports, the companies reported virtually no pollution violations. But the Kentucky Energy and Environment Cabinet failed to identify or address the falsified reports. Accurate reports revealed thousands of violations — and patterns of pollution that the false data had obscured.

Two of the three companies entered settlements in 2011 and 2012. But the third, Frasure Creek Mining, said it could not afford to pay the penalties, prolonging the case over the past few years.

Frasure Creek has since entered and reemerged from bankruptcy, but new evidence suggests the company quickly returned to submitting falsified water monitoring reports.

On Nov. 17, Appalachian Voices and its partners in Kentucky announced their intention to sue Frasure Creek for nearly 28,000 reporting violations in 2013 and 2014 — three times the amount the groups discovered in 2010 — carrying a maximum combined penalty of more than $1 billion.

Eric Chance, water quality specialist with Appalachian Voices, called the failure of the state agency to stop the violations “disturbing,” and questioned whether state officials read the quarterly pollution reports.

A week after the notice to sue Frasure Creek was issued, a Kentucky judge issued orders rejecting the settlement agreed to by the company and the cabinet in the 2010 case and ruled that the cabinet had circumvented the rights of citizens to intervene under the Clean Water Act.

The settlement, Judge Phillip Shepherd wrote, was unlikely to change Frasure Creek’s behavior because the economic benefit the company obtains from cheating the law “far outweighs the costs of compliance, or the risk of any fines and penalties that the cabinet will impose.”

Petitions asking the EPA to withdraw states’ Clean Water Act authority and replace it with federal oversight are pending in Kentucky, West Virginia and Virginia, among other states.

Research Finds Mine Reclamation Failures

Friday, December 19th, 2014 - posted by allison

By Brian Sewell

Efforts to restore mountaintop removal coal mines are not meeting the objectives of the Clean Water Act, creating a variety of consequences for aquatic life, according to a September study by the University of Maryland’s National Socio-Environmental Synthesis Center.

According to the study’s authors, surface mine sites reclaimed more than 20 years ago are still degrading water quality. In a separate study of salamander populations and species diversity in impacted streams, University of Kentucky researchers concluded that although improved reforestation efforts could be beneficial for salamanders, current reclamation practices do not lead to recovery of species diversity in streams.

Nothing to see here

Friday, December 5th, 2014 - posted by eric
The Kentucky Energy and Environment Cabinet's attempts to rebuke critics can't make up for its failure to notice blatant Clean Water Act violations or prosecute coal company misdeeds.

The Kentucky Energy and Environment Cabinet’s attempts to rebuke critics can’t make up for its failure to notice blatant Clean Water Act violations or prosecute coal company misdeeds.

Kentucky’s environmental regulators can’t have it both ways. On one hand, the Kentucky Energy and Environment Cabinet claims it does not have enough funding to do its job. On the other hand, it says it’s doing its job just fine.

Long-standing failures of the cabinet, which regulates coal mines and other polluters, have become even more evident in light of new legal action brought by Appalachian Voices and our partners and a recent court ruling.

In a scathing opinion issued Nov. 24, Franklin Circuit Court Judge Phillip Shepherd rejected two settlements that the cabinet had reached with Frasure Creek Mining for submitting false water pollution reports several years ago. A week before Judge Shepherd’s rulings, we had filed a Notice of Intent to Sue Frasure Creek for again submitting false reports in 2013 and 2014 that again went unnoticed by the cabinet.

Not Just a Matter of Money

For years, despite clear and persistent evidence of problems, the cabinet repeatedly claimed to be fulfilling its duties under the Clean Water Act. But it was ignoring the underlying problems, including potentially illegal water pollution discharges masked by false reporting.

In response to our recent notice that Frasure Creek has perpetrated some 28,000 new violations of the Clean Water Act, the cabinet issued a press release that essentially claimed it has everything under control. The cabinet says it’s focusing on “violations as submitted” on water monitoring reports, ignoring the fact that those reports are false or could even be fraud. The release goes on to defend the cabinet’s settlements with Frasure Creek — the ones later thrown out by Judge Shepherd — and said the cabinet had been looking into Frasure Creek’s more recent violations:

The Division of Enforcement within the Cabinet has been monitoring compliance with the April 13, 2013 Agreed Order with Frasure Creek and initiated an internal compliance review in January 2014 that has identified violations as submitted on DMRs [Discharge Monitoring Reports] to the agency. Administrative action on those violations is ongoing and is pending within the agency.

Seeking to understand the validity of these claims, our lawyers submitted a formal request for the information on the cabinet’s “internal compliance review.”

In a bold showing of its own incompetence, the cabinet asked us to clarify what we meant by “[v]iolations ‘mentioned in’ the press release.” It appeared that they did not even know what they were referring to in their own press release.

Once we clarified our request, we received this convoluted response:

The phrase ‘internal compliance review’ that was used in the November 17, 2014 press release is a term used to describe the primary function of staff in the Compliance and Operations Branch of the Division of Enforcement (DENF)…. The phrase does not encompass a specific period of time with dates certain for beginning and ending the compliance process, but it is used within DENF to refer to any ongoing review. With respect to Frasure Creek, our compliance review is ongoing and underway at this time, but it has not progressed to the point where NOVs [Notices Of Violation] have been issued or referrals for enforcement action have been generated.

In plain English, the cabinet’s response essentially says it has been looking at Frasure Creek’s violations, but officials either haven’t written anything down about them yet or, if they have written anything down, they refuse to disclose it. So, just like past claims that the cabinet is doing its job, this response is empty.

The fact that the agency is strapped for cash has never been in question — even Judge Shepherd agrees. As he stated in his recent ruling:

Commissioner Scott further testified that the cabinet has been subjected to a series of major budget cuts during the last 10 years that have drastically and adversely affected the ability of the cabinet to do its job in implementing the Clean Water Act.

[T]he record in this case makes it abundantly clear that the Cabinet simply lacks the personnel and budget to effectively investigate and enforce these requirements of law.

But it’s not a lack of funding keeping the cabinet from effectively enforcing laws as much as a lack of will.

You would think that if the cabinet truly were intent on protecting the environment, they would have punished Frasure Creek to make an example of the company, rather than wasting taxpayer dollars trying to prevent citizen involvement in this case. You would also think that the cabinet wouldn’t spend its limited resources on unsuccessful legal challenges to the Environmental Protection Agency’s guidance on conductivity pollution from coal mines, or weakening water quality standards for selenium, a common coal mining pollutant.

Brown water at a Frasure Creek Mine. This is one of the discharge points that the company submitted false data for.

Brown water at a Frasure Creek Mine. This is one of the discharge points that the company submitted false data for.

The cabinet serves at the pleasure of Gov. Steve Beshear, whose strong pro-coal attitude is without doubt. In one State of the State address, Beshear went so far as to say, “Washington bureaucrats continue to try to impose arbitrary and unreasonable regulations on the mining of coal. And to them I say, ‘Get off our backs!’”

When elected officials are beholden to a single industry, as many are in Central Appalachia, it’s no surprise that regulators would be easy on that industry. But the level of corporate influence in Kentucky is out of control. Coal companies should not be able to flout the law without fear of serious prosecution. And whether the bosses like it or not, the cabinet still has the legal duty to uphold the Clean Water Act.

Could Criminal Charges Be in Store for Frasure Creek?

The cabinet and other Kentucky officials have generally ignored or dismissed the possibility that the false reporting was intentional fraud. But recent cases of laboratory fraud in West Virginia make criminal prosecution seem more feasible. One case involved discharges from coal mines where a lab employee was collecting water samples from a “honey hole,” a spot known to have good water quality, rather than from the actual pollution discharges. In another, a contract employee was reusing data from previous water monitoring reports because they had failed to pay their laboratory.

In a statement that indicates a criminal investigation should ensue, Judge Shepherd wrote:

The conditions observed by the cabinet’s inspectors during the performance audit of Frasure Creeks’ so-called “laboratory” demonstrated either a plan or scheme to submit fraudulent information in the DMRs or incompetence so staggering as to defy belief.

Kentucky Attorney General and gubernatorial hopeful Jack Conway has vowed to look into the new Frasure Creek violations. But several years ago, his team looked into the previous violations and told reporter Ronnie Ellis that they couldn’t find anything “that rises to the level of intent or criminal fraud that’s ready to be prosecuted.”

The cabinet’s dismissive attitude toward the seriousness of environmental problems in Kentucky is unsurprising given the state’s political climate, not to mention the fact that the Frasure Creek cases expose the agency’s utter incompetence. But the jig is up. It’s time for the cabinet to either start doing its job or step aside and let the EPA do it instead.

What will Obama’s legacy be on mountaintop removal?

Wednesday, December 3rd, 2014 - posted by thom
After six years of the Obama presidency, mountaintop removal is still putting communities are at risk, leading many to wonder what his environmental legacy will be.

After six years of the Obama presidency, mountaintop removal continues to put Appalachian communities at risk, leading many to wonder what his legacy on the issue will be.

The Obama administration has taken steps to limit mountaintop removal coal mining pollution in Appalachia. The president and agency officials have also made quite a few promises. But mountaintop removal continues, so what have they actually done?

The Alliance for Appalachia, a coalition of groups including Appalachian Voices, just released a Grassroots Progress Report examining the administration’s successes and shortfalls in dealing with mountaintop removal. There have been successes, to be sure, but as the report clearly demonstrates, there have been many failures.

Large scale surface coal mining is still a huge problem in Central Appalachia. Although the pace has slowed due to the declining coal economy, many new permits are issued every year. In 2013 Virginia issued 9 new surface mining permits and 2 acreage expansions, West Virginia issued 25 new permits, and Kentucky issued 30. Only Tennessee issued no new permits. - Grassroots Progress Report

The report covers not only the scale of ongoing mining, but paints a clear picture of the costs that mountaintop removal continues to have on Appalachian communities. The poor economic outcomes and human health problems associated with mountaintop removal have not improved over the past six years. These issues are closely linked, and neither can improve without action from the White House.

The White House has already made commitments. A 2009 Memorandum of Understanding, signed by all of the relevant regulatory agencies, outlined a series of actions the administration was prepared to take to deal with mountaintop removal. The Alliance report goes through those commitments one by one, pointing out the shortcomings of the actions taken, and the failure of the administration to take further, stronger actions.

The report is not simply a list of grievances, however. There are four policy recommendations as well.

1) a Selenium Standard to ensure that citizens maintain the ability to test for selenium pollution in their own water,
2) a strong Conductivity Rule based on scientific research US EPA has already conducted because we, and our federal agencies, know that high conductivity can be a key measure of dangerous water,
3) a Stream Protection Rule that preserves a strong stream buffer zone requirement so that mining waste can no longer be dumped into our streams, and
4) a strong Minefill Rule to address the currently unregulated dumping of coal burning waste into abandoned mine sites.

If you’re interested in what the Obama administration has and has not done in dealing with mountaintop removal coal mining in Appalachia, take a moment to read the one-page summary or the full report.

Kentucky court sides with citizens and environment

Tuesday, December 2nd, 2014 - posted by eric

Viewed through a swing set on a nearby resident’s yard, this is one of Frasure Creek Mining’s many valley fills at their numerous Mountain Top Removal coal mines.

Last week, Appalachian Voices and our partner organizations won a major victory in the Kentucky courts when a judge overturned two slap-on-the-wrist settlements that the Kentucky Energy and Environment Cabinet had reached with Frasure Creek Mining a few years ago.

These cases began in 2010, when we uncovered blatantly false water monitoring reports that Frasure Creek was submitting to state regulators. The judge’s decision comes just one week after Appalachian Voices and our partners filed a 60-day Notice of Intent to Sue Frasure Creek for returning to their practice of submitting hundreds of false water monitoring reports called Discharge Monitoring Reports or DMRs.

Appalachian Voices is joined in these efforts by Kentuckians For The Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance, jointly represented by Mary Cromer of Appalachian Citizens’ Law Center, Lauren Waterworth and the Pace University Environmental Litigation Clinic.

Franklin County Circuit Judge Phillip Shepherd’s opinion is scathing and in many places simply speaks for itself:

The Cabinet took the position that it did not have sufficient evidence to support a claim of intentional submissions of knowingly false data, or fraud, by the Defendant or its contract lab…. The Cabinet took this position notwithstanding… that the signatures of the DMRs were often dated prior to the sampling that was being reported, and that multiple DMRs appear to be simply photocopies of prior reports without any evidence that actual sampling took place. The conditions observed by the Cabinet’s inspectors during the performance audit of Frasure Creeks’ so-called “laboratory” demonstrated either a plan or scheme to submit fraudulent information in the DMRs or incompetence so staggering as to defy belief. [Emphasis added]

The opinion goes on to make several other very important points:

The Cabinet chose to limit its investigation to reporting errors…, and not to investigate substantive pollution violations though there were indications of such violations

The integrity of the regulatory process is based on the accurate reporting of monitoring data. If the Cabinet suspects pollution violations but only investigates and assesses penalties for administrative reporting violations, the Cabinet creates incentives for inaccurate reporting or failing to report as opposed to honest reporting that reveals pollution violations.

The Court finds that the economic benefit realized by Frasure Creek in using a substandard laboratory with systematic problems in its DMRs, far exceeds the civil penalty agreed to by the Cabinet.

When one company so systematically subverts the requirements of law, it not only jeopardizes environmental protection on the affected permits, it creates a regulatory climate in which the Cabinet sends the message that cheating pays. [Emphasis added]

[T]he record in this case makes it abundantly clear that the Cabinet simply lacks the personnel and budget to effectively investigate and enforce these requirements of law. [Emphasis added]

Valley fill and pond at a Frasure Creek Mining MTR site.

Valley fill and pond at a Frasure Creek Mining MTR site.

Judge Shepherd actually issued two rulings, one on each of the two cases against Frasure Creek that were before him. The first case was based on the false water monitoring reports that we uncovered in 2010. The cabinet entered a settlement with Frasure Creek with miniscule fines compared to what is allowed under the Clean Water Act. We then challenged that weak settlement in court. In last week’s ruling, the judge threw out the settlement because it is not “fair, reasonable or in the public interest”.

The second case was based on pollution problems that became evident once Frasure Creek’s false reporting subsided. We intervened in that case and were made full parties to an administrative case that the Cabinet brought against the company (though the Cabinet only brought this case because we had already filed a Notice of Intent to Sue for pollution problems in question). Even though we were full parties to the case, the Cabinet and Frasure Creek reached another sweetheart settlement without our involvement. Judge Shepherd found this had violated our due process rights and threw out the settlement, sending the case back to administrative court.

Both of these decisions could be appealed, and since previous settlements were simply thrown out, the actual violations are still unresolved. We will have to wait and see how these outstanding issues play out. Nonetheless, this is still a great step forward, and a great vindication of citizens’ right to protect their environment.