Posts Tagged ‘Clean Water Act’

Same coal company, same old (illegal) tricks

Monday, November 17th, 2014 - posted by eric

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

>> View our Press Release here

Citizen groups take legal action against Kentucky coal company for falsifying water pollution reports

Monday, November 17th, 2014 - posted by cat

State regulators ignore clean water protections and enforcement

CONTACTS

Erin Savage, Appalachian Voices, 828-262-1500, erin@appvoices.org
Ted Withrow, Kentuckians For The Commonwealth, 606-784-6885 (h) or 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

Eastern Kentucky – Over the course of 2013 and 2014, Frasure Creek Mining – one of the largest coal mining companies in Kentucky – sent the state false pollution reports containing almost 28,000 violations of federal law, and the Kentucky Energy and the Environment Cabinet failed to detect the falsifications, according to a letter of notification served to the company by four citizen groups. It was the second time the groups have taken legal action against Frasure Creek for similar violations.

In a 30-page notice of intent to sue mailed Friday, the groups document that Frasure Creek duplicated results from one water pollution monitoring report to the next, misleading government officials and the public about the amount of water pollution the company has been discharging from its eastern Kentucky coal mines. In some cases, Frasure Creek changed only the values that would have constituted violations of pollution limits in the company’s discharge permits. With a potential fine of $37,500 per violation, the maximum penalty could be more than $1 billion.

The notice letter was sent by Appalachian Voices, Kentucky Riverkeeper, Kentuckians For The Commonwealth and the Waterkeeper Alliance. The groups are represented by Mary Cromer of Appalachian Citizens Law Center, attorney Lauren Waterworth, and the Pace Law School Environmental Litigation Clinic. Under the Clean Water Act, citizens must give the government 60-days notice of their intent to sue for violations. If Frasure Creek fails to correct the violations within the 60-day time period, the groups said they will file suit in federal court.

>>The notice letter can be downloaded here.

Four years ago, the groups found that Frasure Creek had sent similar falsified pollution reports, copying data from one report to the next. When the violations were brought to light, the state cabinet gave the company a minimal fine and promised reforms to ensure the agency would identify misreporting in the future. However, according to the notice served yesterday, the more recent duplications are even more extensive, and the state again failed to detect the violations or take enforcement action.

“Copy and paste is not compliance,” said Eric Chance, a water quality specialist with Appalachian Voices. “The fact that Frasure Creek continued to flout the law to this extent, even after being caught before, shows it has no regard for the people and communities they are impacting. Equally disturbing is the failure of state officials to act to stop the obvious violations. We’re not sure state officials even look at the quarterly reports.”

Frasure Creek has filed false reports or violated permit limits at more than 70 discharge points from the company’s numerous coal mines across eastern Kentucky. In the first quarter of 2014, more than 40% of the all reports filed by Frasure Creek contained data that the company had already submitted in 2013. These violations occur primarily at mines in Floyd County, but also at mines in Pike, Magoffin, Knott and Perry counties. The impacted waterways include tributaries of the Big Sandy River, Licking River and Kentucky River.

“The Clean Water Act absolutely depends on accurate reporting of pollution discharges. False reporting like this undermines the entire regulatory framework that safeguards the people and waters of Kentucky from dangerous pollution,” said Waterkeeper Alliance attorney Pete Harrison. “By all indications, this case looks like the biggest criminal conspiracy to violate the federal Clean Water Act in the history of that law. The refusal of the U.S. attorney in Lexington and the Environmental Protection Agency to bring criminal cases against Frasure Creek is just as inexcusable as the state’s failure to bring this company into compliance.”

“Once gain we find ourselves in the position of having to take action against Frasure Creek for the exact same type of violations we found four years ago. The Environmental Cabinet says they do not have the personnel to enforce the Clean Water Act. I would add they do not have the will to do so,” said Ted Withrow with Kentuckians For The Commonwealth.

When the citizen groups made those violations public four years ago, the cabinet attributed the false reporting to “transcription errors” and attempted to let Frasure Creek off the hook with minimal fines and no consequences if the violations continued. That case is still pending in Franklin Circuit Court. Though the false reporting stopped for a short time, during those months when accurate monitoring reports were submitted the pollution levels spiked.

“Frasure Creek’s false reports are hiding very serious water pollution problems,” said Kentucky Riverkeeper Pat Banks. “It’s reprehensible that our state officials are ignoring the serious consequences of this illegal activity for the people and the economy of eastern Kentucky.”

“We cannot make an economic transition in eastern Kentucky without clean water for the future,” added Withrow. “More than 28,000 violations of the Clean Water Act cannot be swept under the rug.”

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Be cool and keep fighting

Wednesday, November 5th, 2014 - posted by thom
After the tumultuous midterm elections, not that much has changed and our job in Washington, D.C., remains much the same.

After the tumultuous midterm elections, not that much has changed and our job in Washington, D.C., remains much the same.

For the next couple of weeks, you’ll have a hard time turning on the TV or going online without seeing reactions to the midterm elections. Most pundits will analyze what happened, and some will try to tell you what it means.

Here’s what it really means: maybe not that much.

To put things in historical perspective, let’s take a moment to look back at some very recent elections and their outcomes.

2008: Democrats take the White House and a supermajority in both the House and Senate! They proceed to pass climate legislation, stop mountaintop removal coal mining, usher in a new age of clean energy take a few moderate steps toward reducing the amount of permits issued for mountaintop removal coal mining.

2010: Republican wave! The GOP takes the House by a wide margin and nearly takes the Senate. They proceed to remove EPA’s ability to regulate carbon pollution and then expedite all mountaintop removal permits create a fuss while federal agencies continue to take moderate steps towards limiting coal pollution.

2012: Democrats keep the White House, and improve their numbers in both the House and Senate! They proceed to make permanent changes to coal mining and coal ash regulations while stopping global warming in its tracks make no headway on coal mining regulations, allow mountaintop removal mines to be permitted, and take only moderate steps on coal ash regulation and carbon emissions.

We don’t know what the future holds, but considering what happened yesterday there are a few things that we can be pretty sure of moving forward.

The politics of Virginia and Tennessee are not much different today than they were yesterday. No major incumbent lost their race, and the election’s outcomes gives us no reason to believe federal office holders from either state will change their behavior going forward. Appalachian Voices, for one, is happy to continue to work with members from both states and both parties.

West Virginia and Kentucky are still in Big Coal’s stranglehold. But like coal itself, the industry’s power is finite. We can’t say how soon the politics of coal will change in Central Appalachia, but we will continue to work with our allies in those states to change the conversation. For now, members of the two states’ delegations will continue to vote the way they have for years.

After 30 years as an advocate for coal miners and the coal industry alike, Rep. Nick Rahall lost to his Republican challenger, Evan Jenkins, in the race for West Virginia’s 3rd district. Rahall was the senior Democratic member and had a firm grasp on the House Transportation and Infrastructure Committee, which has jurisdiction over the Clean Water Act. His replacement in that role will likely be someone who opposes mountaintop removal coal mining. For that, we can be all be happy.

North Carolina’s Senate election was a bit of a surprise. Though, aside from Democrat Kay Hagan being replaced by Thom Tillis, the rest of delegation is unchanged.

Appalachian Voices has worked hard to build relationships with members of Congress and their staffs in both the House and the Senate. But we have known for a long time that getting comprehensive legislation through Congress is not a good short-term goal.

The White House, on the other hand, is armed with the science and has the legal authority and moral obligation to take on mountaintop removal, coal ash pollution, climate change and other threats. President Obama was never going to be able to rely on Congress to act on those issues. So from that perspective, nothing has changed.

It’s okay to be excited about a candidate you like winning an election. It’s okay to be bummed when a candidate you like loses. But it’s not okay to get so caught up in it all that you forget the big picture.

As we see it, the job before us has not changed. Our responsibilities to Appalachia, and yours, are the same today as they were yesterday and will be tomorrow.

We will keep fighting for a better future for Appalachia, and push every decision-maker, regardless of their political leanings, to stand with us. We will fight to end to mountaintop removal and for a just economic transition away from fossil fuels. We will fight because no one else is going to do it for us, and we will need you there by our side.

A Washington Post editorial on mountaintop removal’s dirty consequences

Wednesday, October 22nd, 2014 - posted by thom
The editorial board of The Washington Post understands that mountaintop removal is still happening, and that the consequences are devastating. Photo by Lynn Willis, courtesy of SouthWings.

The editorial board of The Washington Post understands that mountaintop removal is still happening, and that the consequences are devastating. Photo by Lynn Willis, courtesy of SouthWings.

Today, the editorial board of The Washington Post published a strongly worded condemnation of mountaintop removal coal mining in Appalachia. The piece begins with what we all know:

“For decades, coal companies have been removing mountain peaks to haul away coal lying just underneath. More recently, scientists and regulators have been developing a clearer understanding of the environmental consequences. They aren’t pretty.”

As evidence, the editorial highlights two recent studies that we’ve also covered here. First, the U.S. Geological Survey’s findings that pollution from mountaintop removal is devastating fish populations in Appalachian streams. We summed up that research on this blog in July:

Over the summer, a U.S. Geological Survey study compared streams near mountaintop removal operations to streams farther away. In what should be “a global hotspot for fish biodiversity,” according to Nathaniel Hitt, one of the authors, the researchers found decimated fish populations, with untold consequences for downstream river systems. The scientists noted changes in stream chemistry: Salts from the disturbed earth appear to have dissolved in the water, which may well have disrupted the food chain.

The second study the editorial points to is new research out of West Virginia University that found dust pollution from mountaintop removal promotes lung cancer. We wrote last week:

The Charleston Gazette reported on a new study finding that dust from mountaintop removal mining appears to contribute to greater risk of lung cancer. West Virginia University researchers took dust samples from several towns near mountaintop removal sites and tested them on lung cells, which changed for the worse. The findings fit into a larger, hazardous picture: People living near these sites experience higher rates of cancer and birth defects.

We’re glad one of the largest newspapers in the country is paying attention, even when many policymakers are not. The editorial does, however, give a bit too much credit to the Obama administration and the U.S. Environmental Protection Agency for their actions to reduce the environmental and human toll of mountaintop removal. Actions have been taken, certainly, but mountaintop removal is still happening in Appalachia.

With the mounting scientific evidence that mining pollution is decimating fish populations, causing air and water pollution, wiping out trees and mountains, and promoting a host of human health problems, there is no excuse for the Obama administration to allow mountaintop removal to continue.

Take a moment to let the president know that Appalachian communities are still being put at risk.

Employees of DEP-certified lab conspired to violate Clean Water Act

Thursday, October 9th, 2014 - posted by brian
An employee of Appalachian Laboratories Inc., a state-certified lab used by coal companies, plead guilty to conspiracy to violate the Clean Water Act.

An employee of Appalachian Laboratories Inc., a state-certified lab used by coal companies, plead guilty to conspiracy to violate the Clean Water Act. Photo from Flickr.

We learned some unsettling news from West Virginia yesterday afternoon. The Charleston Gazette reports that an employee of a state-certified company pleaded guilty to conspiracy to violate the Clean Water Act after he faked compliant water quality samples for coal companies between 2008 and 2013.

John W. Shelton, who worked as a technician and then a field supervisor for Appalachian Labs Inc., a Beckley, W.Va., firm, admitted to diluting water samples taken from mine pollution discharge points with clean water, among other unlawful measures taken, to ensure pollution levels were in compliance with permitted limits. Prosecutors say Appalachian Labs conducts water sampling at more than 100 mine sites in West Virginia, but for now it’s unclear what mine sites or coal companies could be implicated in the case.

As Ken Ward Jr. points out in The Gazette, this crime is a serious cause for concern, since state and federal agencies rely heavily on self-reported data to determine if coal companies are obeying the law. But honestly, while we’re appalled, it is hard to be surprised by this latest discovery. We have some experience with misreporting of water monitoring data that has taken place in Central Appalachia in recent years.

The way this story is coming together suggests a frightening collusion between employees at a lab that maintained certification from DEP. We know from the plea agreement that Shelton did not act alone. Check out the section titled “The Conspiracy to Violate the Clean Water Act” that begins on page 4. But the truly damning language comes in the following section, which states the “objects of the conspiracy were to increase the profitability of Appalachian by avoiding certain costs associated with full compliance with the Clean Water Act … and to thus encourage and maintain for Appalachian the patronage of [its] customers.”

Shelton faces up to five years of imprisonment and a fine of up to $250,000. The investigation into Appalachian Labs, however, is ongoing and is being handled by U.S. Attorney Booth Goodwin, the FBI and the U.S. Environmental Protection Agency.

Following is a statement from Appalachian Voices’ Central Appalachian Campaign Coordinator Erin Savage:

The discovery that a lab employee in West Virginia knowingly altered sampling procedures to assure that monitoring reports submitted for coal companies would be in compliance with the Clean Water Act raises serious questions about the reliability of monitoring reports for the coal industry across Central Appalachia.

False reporting of water quality data from mines in Central Appalachia is not unheard of. In 2010, Appalachian Voices uncovered water monitoring reports that contained duplicated data for the three largest mountaintop removal companies in Kentucky. During the period they were submitting erroneous monitoring reports, these companies never reported a single pollution violation.

No criminal charges have been brought in Kentucky in relation to those cases. In light of the charges brought in West Virginia, however, we have to wonder how widespread these criminal practices are. This shocking discovery further highlights the extreme need for state agencies to seriously reevaluate their enforcement efforts and for the EPA to step in when the states do not properly enforce the law.

Updated Oct. 21: Under oath in federal court, Shelton told a judge that coal companies “put a lot of pressure” on labs to get good water data. Read more in The Charleston Gazette.

After last-minute compromise, N.C. legislature passes coal ash bill

Wednesday, August 20th, 2014 - posted by brian
Duke Energy's retired Dan River coal plant, where a massive coal ash spill in February spurred legislative action.

Duke Energy’s retired Dan River coal plant, where a massive coal ash spill in February spurred legislative action.

However dysfunctional, the North Carolina General Assembly always seems to come together in the end.

On Wednesday afternoon, the N.C. House voted 83 – 14 in favor of a compromise bill on what to do about the state’s coal ash problem. A few hours later, the Senate followed suit. The bill will now go to the governor.

Here’s what Appalachian Voices’ Amy Adams said about the bill:

“A far cry from the historic bill lawmakers have touted, this plan chooses just four communities out of 14 across the state to be cleaned up in this decade. The others, our lawmakers have decided, will have to wait for a commission of political appointees to decide their fate.”

We’ll skip the self-congratulatory cheerleading coming out of Raleigh and share more of the finer details in the days and weeks ahead. But suffice it to say, by overlooking the present threats that most of the coal ash sites in the state pose, the final bill comes nowhere close to fulfilling lawmakers’ promises to protect North Carolina’s communities in the wake of the Dan River spill.

Learn more about the bill here.

Endangered Species are New Focus in Legal Case against Kentucky’s Water Quality Protections and EPA

Wednesday, August 13th, 2014 - posted by eric

Contact
Appalachian Voices: Eric Chance, 828-262-1500, eric@appvoices.org
Kentuckians For The Commonwealth: Suzanne Tallichet, 606-776-7970, stallichet1156@aol.com
Center for Biological Diversity: Tierra Curry, 971-717-6402, tcurry@biologicaldiversity.org
Sierra Club: Adam Beitman, (202) 675-2385, adam.beitman@gmail.com
Defenders of Wildlife: Melanie Gade, (202) 772-0288, mgade@defenders.org
Kentucky Waterways Alliance: Tim Joice, (502) 589-8008, Tim@kwalliance.org

LOUISVILLE, Ky. –
A coalition of national and Appalachian conservation groups today asked the U.S. District Court for the Western District of Kentucky to compel the Environmental Protection Agency (EPA) to protect imperiled wildlife in Kentucky. The groups want the EPA to reassess the dangers posed to wildlife by a new set of water quality standards covering Kentucky’s coal mining and agricultural operations.

In November 2013, the EPA approved the weakening of Kentucky’s water quality standards for selenium, a pollutant commonly released by mountaintop removal coal mines. The EPA also approved Kentucky’s weakened standards for nutrient pollution from agricultural runoff, which causes toxic algae blooms in local bodies of water and depletes the oxygen needed to support most aquatic life. A coalition of conservation groups, including Appalachian Voices, Kentuckians For The Commonwealth, Kentucky Waterways Alliance and Sierra Club, immediately filed suit, asserting that the EPA’s new guidelines are insufficient to protect waterways and wildlife under the Clean Water Act.

Today, two national wildlife conservation groups, Defenders of Wildlife and Center for Biological Diversity, joined the case. The groups assert that, in addition to violating the Clean Water Act, the EPA’s approval of Kentucky’s weakened water quality standards also violates the Endangered Species Act. Under that law, the EPA is required to consult with the U.S. Fish and Wildlife Service to assess the impacts of changed standards on federally listed species. The groups allege that the EPA violated the Endangered Species Act by initiating, but failing to complete, that consultation process.

The groups issued the following statements:

Jane Davenport, senior staff attorney with Defenders of Wildlife:
“Coal mining has devastating impacts on water-dependent wildlife. The new, weaker water quality standards were originally proposed by the coal mining lobby so it’s unfortunate to see the Environmental Protection Agency essentially rubber stamp them without even checking to see how imperiled wildlife would be affected. Implementation of these new standards needs to be put on hold until the EPA fulfills all of its obligations under the Endangered Species Act and Clean Water Act.”

Eric Chance, water quality specialist with Appalachian Voices:
“This weakened selenium standard is basically a handout to the coal industry at the expense of the people and streams of Kentucky. The EPA and state are just making it easier for polluters to get away with poisoning streams. This is a misguided rule at odds with well-established science, existing laws and common sense.”

Tierra Curry, senior scientist at the Center for Biological Diversity and a native of Knott County:
“Kentucky is home to more kinds of freshwater animals than nearly any other state. Keeping the water safe for them will also help protect healthy water quality for people.”

Alice Howell of Sierra Club’s Cumberland (Kentucky) Chapter:
“Mountaintop removal coal mining threatens our health and our environment, including our most vulnerable species. The EPA has acted irresponsibly by approving Kentucky’s dangerously weak standards. It’s time for the courts to intervene and uphold the strong protections required under the Clean Water Act and Endangered Species Act.”

Suzanne Tallichet, state chair of Kentuckians For The Commonwealth:
“KFTC members are concerned with the health and well-being of all species. We all share the planet, so when one species is being harmed, we are all at risk – including people. Kentucky state officials and the EPA should help us strengthen – rather than diminish – our natural resources. Many Kentuckians are working hard to build a brighter future for coal-impacted communities. But that bright future depends on having healthy streams that are necessary for wildlife, tourism, communities, and businesses to thrive. Appalachia’s bright future can’t be built on polluted waterways that are doing damage to fish and wildlife, not to mention local communities. Kentucky deserves better than these weakened water quality standards.”

Judy Petersen, executive director of Kentucky waterways Alliance:
“The selenium pollution allowed under these new rules could impact birds and other wildlife dependent on the bugs and small fish in our waterways. And we’ve already seen the impacts of too many nutrients in our waters. Taylorsville and Barren River Lakes have levels of harmful algae that put them in the moderate health risk for recreational exposure. People can get sick and even dogs and pets could die after swimming in these lakes. We must do a better job protecting our waterways from pollution, and not look to weaken protections.”

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Full Disclosure?

Sunday, August 10th, 2014 - posted by Jack Rooney

As North Carolina considers its first natural gas drilling rules, a survey of the region shows how states are — and aren’t — regulating fracking

By Molly Moore

When Denise der Garabedian heard that fracking could come to the area near her home in the Smoky Mountains of Cherokee County, N.C., she began researching the controversial method of gas drilling and talking to neighbors who had seen the effects of the fracking boom in other states. The more she learned, the more determined she became to speak out against the practice.

Hydraulic fracturing, also known as fracking, involves drilling a well into shale rock formations and injecting a mixture of water, sand and chemicals at high pressure to fracture the rock, prop open the fissures, and then withdraw the natural gas and less than half of the fracking fluids. The rest of the fracking brine remains underground, where some scientists are concerned that it could migrate into groundwater.

The relative abundance of natural gas has made it a cheap source of power. But as shale gas production has skyrocketed — from 169,026 million cubic feet in 2007 to 902,405 in 2012 — concerns about water contamination have grown.

In January, an Associated Press investigation of water contamination in Ohio, Pennsylvania, West Virginia and Texas found that some states have confirmed a connection between oil and gas drilling and well-water contamination.

Independent research points to similar conclusions. “A range of studies from across the United States present strong evidence that groundwater contamination occurs and is more likely to occur close to drilling sites,” states a compendium of research on fracking’s environmental and public health effects assembled by the Concerned Health Professionals of New York in July. Last year, a Duke University study in northeastern Pennsylvania found that higher levels of methane in wells near gas drilling sites were linked to shale gas extraction.

Proponents of fracking point to alternate studies — such as one conducted by the drilling company Cabot Oil and Gas — that they say disprove the conclusions drawn from other scientific research.

Still, there is no overarching scientific statement on how frequently fracking affects drinking water supplies or how those chemicals impact public health. In 2010, Congress ordered the U.S. Environmental Protection Agency to conduct a comprehensive study on how fracking affects groundwater, but the release date for that study was pushed back from 2014 to 2016.

While they wait for answers, Appalachian states are moving ahead with fracking, their paths determined by a mix of geological happenstance, political will and citizen pressure. State-level decisions are even more important given a lack of federal oversight — fracking is exempt from federal laws that typically protect water, air and public health, such as the Clean Water, Clean Air, and Safe Drinking Water Acts. The industry is even exempt from Department of Transportation rules that set safety standards for the number of hours truck drivers can work. When states begin fracking, they venture into the Wild West of regulation.

Entering the Fracking Frontier

In 2012, the North Carolina legislature overturned the state’s fracking moratorium and created the Mining and Energy Commission to draft the state’s first natural gas drilling rules. Now, as the legislature accelerates the rulemaking process, the commission is at the center of a statewide debate.

“When the MEC formed and set out on this path they said they were going to make the strongest and most restrictive rules in the nation and since then everything they’ve done has been a step back from that,” says Mary MacLean Asbill, a North Carolina attorney with the nonprofit Southern Environmental Law Center.

page11graphic

The MEC proposals, released in July, would prohibit gas companies from injecting fracking waste underground, but would allow open waste pits. In fact, Asbill says, the draft rules don’t adequately address many areas of concern, including air emissions, liability for spills and baseline water quality testing to determine whether any water pollution problems are pre-existing.

The fracking industry’s exemption from the Clean Water Act also means that companies are not federally required to disclose the chemicals used in the fracking process. Instead, states have discretion to set chemical disclosure standards. North Carolina’s MEC proposals provide some safeguards on this front, but in June the state legislature passed a law making it a misdemeanor for anyone to reveal fracking chemical trade secrets, including doctors who would be granted access to the information in case of emergency.

In August and September, the commission is planning to hold public hearings to solicit input on the draft rules. Three hearings are scheduled in the Piedmont, and, after pressure from western North Carolina residents, the commission agreed to hold a fourth in the mountain town of Cullowhee.

Attention is centered on the natural gas potential of the Deep River and Dan River basins, where test drilling could begin this fall, but the state environmental agency also plans to test for indications of gas in seven western counties.

In the meantime, a recently formed grassroots organization called Coalition Against Fracking in Western North Carolina is organizing town hall meetings and urging local governments to take a stand against the practice. In July, several local governments stated their opposition to fracking, beginning with the Swain County Commission and the town of Webster in Jackson County. The North Carolina law passed in June invalidates local ordinances regarding fracking, but in other parts of the country such ordinances are gaining ground. New York’s top state court recently ruled that towns could use zoning laws to ban fracking near their borders.

As citizens in the western counties of North Carolina prepare for the public comment hearing in September, Denise der Garabedian will keep encouraging her neighbors to pay attention during the rulemaking process and beyond. “I know I can’t save the world, but I might be able to save my backyard and my neighbors’ maybe,” she says.

Science of Setbacks

Along with New York and Pennsylvania, West Virginia has been at the epicenter of fracking in the Eastern United States for a half-dozen years. The Associated Press reported that from 2009 to 2013, the state received roughly 122 complaints that drilling contaminated water wells and found that “in four cases the evidence was strong enough that the driller agreed to take corrective action.”

To address the boom, West Virginia passed a new set of rules in 2011 that environmental and property-rights groups criticized as being too weak; the West Virginia Citizens Action Group called them a “Christmas gift to drillers.”

Among their concerns, critics said that the buffer zones — designed to protect residents and water supplies from air and water pollution — were insufficient. In a 2013 study, Dr. Michael McCawley, a chairman at West Virginia University’s School of Public Health, found contaminants such as the carcinogen benzene in the air at seven drilling sites. Based on his research, he advised the DEP to stop relying on the boundary zones and instead conduct direct air quality monitoring near the sites.

His study was undertaken because of the 2011 law which required the West Virginia Department of Environmental Protection to research several aspects of the oil and gas industry, including air pollution, and then use the results to implement additional rules if necessary. After reviewing McCawley’s findings, however, the DEP reported to the legislature that no rule changes were needed. McCawley then took his concerns directly to state legislators in the fall of 2013, where he says he received an encouraging response. He is continuing to pitch the idea to decision-makers in West Virginia and neighboring states.

Wastewater Worries

Although Kentucky and West Virginia share a long border of similarly rolling mountain ridges, their geology is distinct enough that the Bluegrass State hosts far fewer hydraulic fracturing wells. But that may be changing. Recently, successful tests in the state’s northeastern corner have led to more fracking in the area, and applications to drill are increasing.

Tim Joice, water policy director at the nonprofit Kentucky Waterways Alliance, notes that the state’s oil and gas drilling regulations are decades old and do not consider how modern processes could allow gas or fracking fluids to migrate into aquifers or wells.

Essentially, the existing regulations were written to address nitrogen-foam fracturing, not hydraulic fracturing. In much of the state, hydraulic fracturing doesn’t work very well because the high clay content in some of the state’s shale formations absorbs water. So, beginning in 1978, eastern Kentucky drillers began to combine nitrogen and comparatively small amounts of water — roughly 120,000 gallons — with other chemicals and sand to create a briny foam that is then injected underground at high pressure.

Nitrogen-foam wells have the advantage of using less water and producing less chemical-laden brine for disposal. Yet whether a well is fracked with nitrogen foam or hydraulic fracturing fluid, the resulting toxic waste needs to go somewhere. Often, it’s injected back underground in designated wastewater wells, but companies have also dumped the waste into streams and gullies near drilling sites.

When Kentucky Waterways Alliance requested information about complaints of improper disposal of fracking brine from the state, the Kentucky Division of Water responded with a spreadsheet of 360 incidents between January 2012 and May 2014, six of which have resulted in formal violations.

The 200,000-Gallon Question

In Tennessee, the greatest problem with regulations is simple — the rules don’t apply to most drilling operations in the state. Fracking rules the Tennessee Department of Environment and Conservation passed in 2012 only apply to wells that use more than 200,000 gallons of water. The relatively sparse fracking happening in Tennessee uses the nitrogen process, which uses far less water than the limit, so most operations are exempt from the rules.

“It’s a partial regulatory scheme but they don’t apply it most of the time, so what we’re left with is virtually nothing,” says Anne Davis, an attorney with the Southern Environmental Law Center who had recommended stronger regulations. “If you frack with nitrogen you’re not doing more than 200,000 gallons.”

Operations that use more than 200,000 gallons must issue public notice of new fracking operations, test nearby water wells and provide monitoring reports. Fracking operations using less water still need to file a permit stating their intention to frack, but no public notice is required and the permits are not available online. Once drilling is complete, operators are obliged to disclose the chemicals they use, but this requirement only applies to those chemicals that aren’t classified as trade secrets.

Reviewing Regulation

In Virginia, as part of an ongoing review of fracking, a state regulatory advisory committee recently agreed to recommend that the Virginia Gas and Oil Board change state regulations to require full public disclosure of all ingredients in fracking fluids. In their ongoing meetings, the committee also discussed whether baseline groundwater sampling should be required before the agency can authorize drilling and fracking.

As the rules review continues, several natural gas proposals are keeping the issue in the spotlight. Oil and gas companies are interested in fracking the Taylorsville Basin in eastern Virginia, and one Texas company has already leased 84,000 acres. In the George Washington National Forest, which overlies part of the Marcellus Shale formation, the U.S. Forest Service is considering whether to limit hydraulic fracturing in the area.

New pipelines to carry natural gas from the Marcellus Shale through Virginia have also generated controversy. Routes for the three pipeline proposals aren’t final, but some nearby communities are already organizing to express concerns about oil and gas leaks. And Dominion Resources’ proposed 450-mile project would transport natural gas through the George Washington National Forest, which environmental organizations such as Wild Virginia say endangers natural areas and drinking water supplies.

Efforts to expand fracking and natural gas infrastructure in Appalachia are forcing residents and decision-makers to confront basic questions about the role of natural gas in the region. Whether the industry grows will depend on how strongly states adopt energy efficiency and renewable sources of power and how citizens respond to new fracking and pipeline proposals. If the growing movement in western North Carolina is any indication, the future of fracking in Appalachia will be continue to be fraught with controversy.

Correction: This article has been updated to note that less than half of fracking fluids are withdrawn from wells after drilling — more than half remains underground.

Science vs. Mining

Wednesday, July 30th, 2014 - posted by eric

Fish deformed by selenium pollution

It’s no surprise to folks in coal-impacted communities that surface mining is bad for water quality. Orange streams, devoid of life, litter the landscape. But it would seem to most that this is contrary to many environmental laws, like the Clean Water Act and the Surface Mining Control and Reclamation Act.

Unfortunately these laws are filled with loopholes, and the agencies tasked with enforcing them are usually underfunded and understaffed.

There have been numerous studies over the years showing surface mining’s detrimental effects on the health of nearby people and streams. There are two recent notable studies from the U.S. Geological Survey (USGS) alone. The first was aimed at linking air pollution from mountaintop removal mines to the health problems of nearby residents. Unfortunately, this study will not be completed because its funding has been cut. Earlier this month USGS was able to complete and publish a report that showed streams below mountaintop removal mines have two-thirds fewer fish than those in unpolluted streams. The study also found that selenium pollution is linked to declines in fish populations.

Appalachian Voices has been working to keep the U.S. Environmental Protection Agency and industry from opening new loopholes in our environmental laws that would make it easier to poison streams. Along with a number of our supporters and partner organizations, we recently submitted comments to the EPA on their newly proposed standards for selenium.

Selenium is a mineral commonly discharged from coal mines that is extremely toxic to aquatic life at very low levels. It is also very expensive to remove from water so there have been a number of efforts by the coal industry to get agencies to make the standards more lax. This newly proposed EPA standard will make citizen enforcement harder, and will make it easier for companies to get away with discharging toxic levels of selenium.

The new standards are slightly weaker than the selenium standards EPA tried, but failed, to adopt in 2004. A large number of scientists and even other federal agencies came out in opposition to those standards because they were too weak. The U.S. Fish and Wildlife Service, for example, told the EPA that “Based on a large body of scientific evidence, the Service believes these criterion values will not protect federally listed fish and wildlife species. Furthermore, the service believes these values are not even sufficient to protect the aquatic life for which the criteria were developed.”

>> See our comments here and here
>> Look through all the comments here

Great News for Clean Water in Virginia!

Friday, July 18th, 2014 - posted by eric

A two-headed trout deformed by selenium pollution.

Last week a federal judge upheld a previous decision requiring a Virginia coal company to get a permit for their discharges of toxic selenium.

Selenium is a mineral that is extremely toxic to fish and other aquatic life at very low levels. It is commonly discharged from many coal mines and coal ash ponds. Even in small amounts, selenium causes deformities, reproductive failure and even death in fish and birds. Even though its toxic effects and prevalence in coal mine discharges are well known, this is the first mine in Virginia that will be required to monitor and obtain a permit for its selenium discharges.

Water testing done by Southern Appalachian Mountain Stewards (SAMS) revealed that A&G Coal Corporation’s Kelly Branch Surface Mine was discharging selenium in toxic amounts. So in 2012, Appalachian Voices, SAMS and the Sierra Club, represented by Appalachian Mountain Advocates filed suit against A&G for illegal discharges of selenium.

EPA is currently revising their national standards for selenium. If implemented, their new draft standards will make it more difficult for citizens groups protect streams they care about through legal actions like this one.

A&G Coal Company is owned by billionaire, frequent political campaign contributor and coal baron James Justice.

Last year, a federal judge ruled in our favor and ordered A&G to begin daily selenium monitoring and to apply for a permit from the Commonwealth of Virginia to cover its selenium discharges. A&G appealed that decision with the support of a number of industry groups including the National Mining Association, the Virginia Coal and Energy Alliance, the Virginia Mining Association, the Virginia Mining Issues Group, the American Petroleum Institute and several others. That appeal failed last week.

A&G claimed that their current water discharge permit provided them a “permit shield.” Basically, since they were meeting the terms of their current permit, they were shielded from any liability for other water pollution not included in that permit.

In his decision federal district judge James P. Jones disagreed. The decision states that the validity of a “permit shield” is a two-prong test, requiring that a permittee disclose the presence of the pollutant in its permit application, and that the state agency considers that pollutant. If you fail one prong then you lose the shield. In this case A&G never disclosed the presence of selenium in their permit application, and there is no evidence that Virginia considered selenium pollution, so the company failed both parts of the test. The decision concludes:

To allow the [permit shield] defense in these circumstances would tear a large hole in the [Clean Water Act], whose purpose it is to protect the waters of Appalachia and the nation and their healthfulness, wildlife, and natural beauty.