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Appalachian Residents Push for Clean Water Protections: Cabinet’s Agreed Order Challenged for Lack of Process, Inadequate Remedies

Friday, May 17th, 2013 - posted by eric

FOR IMMEDIATE RELEASE

Appalachian Voices * Kentuckians For The Commonwealth * Kentucky Riverkeeper * Waterkeeper Alliance

CONTACTS:
• Eric Chance, Appalachian Voices, 828-262-1500, eric@appvoices.org
• Pat Banks, Kentucky Riverkeeper, 859-200-7442, kyriverkeeper@eku.edu
• Peter Harrison, Waterkeeper Alliance, 828-582-0422, pharrison@waterkeeper.org
• Ted Withrow, Kentuckians For The Commonwealth, 606-784-6885 or 606-782-0998, tfwithrow@windstream.net

Frankfort Kentucky-Continuing their campaign to make sure Kentucky’s water is safe for everyone, several groups have challenged plans by the Beshear administration to let Frasure Creek Mining “off the hook” for repeated violations of the Clean Water Act.

Appalachian Voices, Waterkeeper Alliance, Kentuckians For The Commonwealth, Kentucky Riverkeeper and several individuals (the petitioners) asked the Franklin Circuit Court Thursday to vacate an Agreed Order signed in April by Environment and Energy Cabinet Secretary Len Peters that claims to resolve all recent water quality violations by the company.

They point out that the settlement “is inadequate to address Frasure Creek’s pollution problems and prevent such harms from occurring in the future.” They called the administration’s action “arbitrary and capricious, an abuse of discretion, contrary to law, and not supported by substantial evidence.”

“This settlement lets Frasure Creek off the hook for thousands of water quality violations,” explained Eric Chance, a water quality specialist with Appalachian Voices. “For years Frasure Creek had been submitting false monitoring reports. During that time they never reported any water quality problems. After we exposed these false reports, they began using more reputable labs and started showing hundreds of water quality violations every month.

“Over the past few years Frasure Creek’s water discharges haven’t really improved and I don’t expect there to be any improvements in the water coming off Frasure’s mines from this settlement,” Chance added.

“Clean water is not just a good idea. Clean water is critical to our health and well being,” said Pat Banks with Kentucky Riverkeeper. “We have learned that we cannot be complacent. The Clean Water Act enforces the notion that if companies are out of compliance and enforcement by the state fails, then citizens can and must step in to protect our waters. That’s what we are doing here.”

The petitioners also point out that they were granted full party status in the administrative enforcement case but were shut out of negotiations between the Cabinet and Frasure Creek that resulted in the final Agreed Order.

“The Cabinet has once again systematically excluded Kentucky citizens who are fighting to protect the water they use. After bringing Frasure Creek’s false reporting and pollution to the Cabinet’s attention, the Cabinet has tried, at every step, to sweep this matter under the rug and quickly settle with the company and exclude citizens from the process,” said Mary Cromer, with the Appalachian Citizens Law Center and one of the attorneys representing the petitioners. “We bring suit against the Cabinet for failing to do what’s necessary to ensure that Frasure Creek’s pollution is cleaned up and for excluding the citizens from their rightful roles as co-enforcers of the Clean Water Act.”

“We as citizens have the right to intervene and see and participate in this process,” explained Ted Withrow with Kentuckians For The Commonwealth. “Yet the Cabinet continues to ignore the law and shield another coal company from any meaningful enforcement. This Agreed Order was done behind closed doors shutting citizens out, even though we had full rights to be part of the process.”

BACKGROUND

In June 2011, the petitioners filed a 60-day Notice of Intent to Sue, documenting more than 2,800 violations of the Clean Water Act by Frasure Creek in the first three months of 2011. After conducting its own investigation, the Cabinet filed an internal administrative enforcement action alleging many of these same violations.

In November 2011, the petitioners were granted full intervention status.

However, the Cabinet conducted negotiations with Frasure Creek without notice to and participation by the intervenors, resulting in the Agreed Order signed by Peters. Kentucky law prohibits the entry of an Agreed Order without the consent of each and every full party to the Administrative Proceeding.

The violations in this case are similar to those in a 2010 lawsuit pending in Franklin Circuit Court, in that older case false reporting made it impossible to identify pollution problems like the ones at issue in this case. In the original lawsuit, the Cabinet filed an enforcement action against Frasure Creek in Franklin Circuit Court after the same petitioners made public thousands of Clean Water Act violations. In that case, the court granted the petitioners full intervention status. So in the 2011 case, the Cabinet took a different enforcement route to avoid public intervention. However, the administrative judge also granted full intervention status.

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Clean Water Protection Act Introduced with 45 Cosponsors

Tuesday, May 7th, 2013 - posted by thom

Yesterday, Rep. Frank Pallone (D-NJ) and Rep. Dave Reichert (R-WA) introduced the Clean Water Protection Act in the 113th Congress with 45 original cosponsors.

The Clean Water Protection Act, H.R. 1837, is a bill in the U.S. House of Representatives which would sharply reduce mountaintop removal coal mining by making it illegal to dump mining waste into valleys and streams. To date, more than 2,000 miles of streams have been buried or severely polluted.

As the bill sponsors point out in their Dear Colleague letter to other members of Congress:

An EPA scientific study in 2008 shows that more than 63% of the streams sampled below mountaintop removal coal mining operations exhibited long-term impairments to aquatic organisms. In some large watersheds, more than half of the streams are impaired.

Last Congress, more than 130 representatives, from Kentucky to Hawaii, took a stand against mountaintop removal coal mining by cosponsoring the Clean Water Protection Act.

It is crucial that we carry over the momentum we built during the last Congress by having a large group of cosponsors. For your Representative to sign onto the bill, they need to hear from you.

Take action now and tell your Congressperson you expect their support of this important legislation.

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Mountaintop Removal 101: Congressional Research Service Updates Report

Thursday, May 2nd, 2013 - posted by brian

An updated report by the Congressional Research Service provides a look at the current legal and legislative challenges to mountaintop removal.

Every day, more Americans become concerned with the threat of mountaintop removal in Appalachia. Just yesterday, I was made aware of a website called “What About Mountains?” created by a fourth grade class at the Episcopal School of Knoxville. These students may just be learning about the issue, but they know that “mountaintop removal coal mining is not OK,” and seeing a photo of lush mountains reduced to “ugly blobs of land” is as fine a place to start as any.

Whether you’re in fourth grade or in your forties, it’s helpful to have a convenient compendium on the issue of mountaintop removal, especially considering the ever-evolving legal battles, status of bills on Capitol Hill, and state and federal level regulations. An updated report from the nonpartisan Congressional Research Service called Mountaintop Mining: Background on Current Controversies acts as a CliffsNotes for anyone concerned with the situation and interested in catching up.

The report summarizes the legal challenges, agency and congressional actions related to mountaintop removal and points out that, despite two recent court rulings underscoring the need for greater protections, few people on either side are please with the U.S. Environmental Protection Agency’s record on the issue. Mountaintop removal supporters complain of onerous rules that hamper employment and opponents point to poisoned water, unhealthy communities and shortened lives.
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Kentucky’s Lab Certification- Is it strong enough?

Wednesday, May 1st, 2013 - posted by eric

Yesterday, Appalachian Voices submitted public comments on a proposed wastewater lab certification program in Kentucky. To discharge polluted water, coal companies must receive a permit under the Clean Water Act. This permit that requires companies to test wastewater and report the data to ensure it falls within the limits of the permit. In Kentucky, there are currently no standards for labs that do this type of testing.

The proposed certification program is a direct result of the lawsuits for falsified water monitoring data we filed against three of the state’s largest coal mining companies. Our investigation revealed that many coal companies were repeatedly submitting the same data and knowingly leaving out reports of any violations of their permits. After we filed these lawsuits, the Kentucky Energy and Environment Cabinet inspected the labs being used for this monitoring and found that in many cases they were not even capable of correctly performing the required tests.

This graph shows some of the inaccurate data submitted by Frasure Creek Mining before our lawsuits lead them to start using a new lab. Click to enlarge.

We believe that enforcing standards on labs used by coal companies will help ensure that labs report accurate data, and that the regulations meant to protect water and those that depend on it from dangerous pollution are effectively enforced. This proposed rule will be a big step forward and we have applauded the cabinet for its efforts to fix these problems. However, there are several weaknesses in the rule that we hope are fixed before it is finalized.

All too often the cabinet has failed to live up to its obligations to protect the people and environment in Kentucky. That is why our comments suggest that discretionary duties given to the cabinet in this rule be made mandatory. Appalachian Voices will continue to work to require the state agencies to actually enforce these standards.

>>Click here to see our comments
>>Click here to read the proposed lab certification rule
>>Click here to read the draft lab manual

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A Good Week for Mountains – Multiple Court Rulings Favor Science and Enforcement

Tuesday, April 23rd, 2013 - posted by brian

Earth Week is off to a good start after two major rulings in two days mean we may start seeing less of this.

We’re only two days into Earth Week — if we must limit it to one week out of the year — but it sure is getting off to a great start. In the past two days, two major court rulings have underscored the need for increased scrutiny from the federal agency responsible for evaluating environmental impacts of mountaintop removal coal mining according to the National Environmental Policy Act and issuing permits under the Clean Water Act.

Yesterday, the 6th U.S. Court of Appeals revoked the U.S. Army Corps of Engineers use of Nationwide Permit 21 (NWP 21), a streamlined and inadequate process that has contributed to the expansion of mountaintop removal in Appalachia since 1992. Kentucky and West Virginia residents, with the support of groups including Kentuckians for the Commonwealth, Kentucky Waterways Alliance and the Kentucky Riverkeeper, have challenged the legality of NWP 21 in state and federal court for a decade.

In its ruling, the three-judge panel called the Corps’ actions “arbitrary and capricious” and found that the agency did not follow the applicable Clean Water Act (CWA) and National Environmental Policy Act (NEPA) regulations, which require it to document its assessment of environmental impacts and examine past impacts before issuing new permits. From the ruling:

Though we generally give greatest deference to an agency’s “complex scientific determination[s] within its area of special expertise,” we may not excuse an agency’s failure to follow the procedures required by duly promulgated regulations.

After opting for streamlined nationwide permitting, the Corps took the easier path of preparing an environmental assessment instead of an environmental impact statement. Having done so, it needed to follow the applicable CWA and NEPA regulations by documenting its assessment of environmental impacts and examining past impacts, respectively. Failing these regulatory prerequisites, the Corps leaves us with nothing more than its say-so that it meets CWA and NEPA standards.

According to the Corps, approximately 70 surface mining permits authorized under NWP 21 qualify for a five-year accommodation to “provide and equitable and less burdensome transition” for coal operators. Whatever its impact on existing mountaintop removal permits, the ruling acknowledges that when it comes to protecting Appalachia, the Corps “say-so” is insufficient.
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Coal Ash Floods Congress and the Courts

Tuesday, April 23rd, 2013 - posted by brian
e. The trend is likely to continue until EPA announces clear rules to regulate the to

Since the 2008 Kingston, Tenn., coal ash spill, the toxic waste has been hotly debated in the media, Congress and the courts.

On April 11, the U.S. House of Representatives Subcommittee on Environment and Economy held a hearing in part to promote the Coal Ash Recycling and Oversight Act of 2013, drafted legislation that would prevent the EPA from implementing federal regulation of coal ash, leaving regulation up to the states.

Some witnesses, including the former director of the Mine Safety and Health Academy, Jack Spadaro, and Lisa Evans, an attorney for Earthjustice focused on hazardous waste, testified against the draft, which is modeled on past legislation that failed and was called “unprecedented” in environmental law by the nonpartisan Congressional Research Service.

“Without a doubt, when mismanaged, coal ash harms Americans nationwide by poisoning water and air and by threatening the very existence of communities living near high hazard dams,” Evans said at the hearing. “We must work together to establish regulations that foremost prevent injury to health and ensure the safety of all communities.”

Spadaro, who has been involved in the evaluation and regulation of coal waste dams since 1972 and wrote federal and state regulations governing the structural integrity of dams in the wake of the Buffalo Creek Flood, cautioned subcommittee members against moving ahead with the draft. According to Spadaro, the proposed legislation lacks the adequate engineering requirements and enforcement by a federal agency necessary to prevent another spill similar to the TVA disaster that would lead to irreversible environmental damage and possible loss of life.

“There are thousands of such structures in the United States at this time,” Spadaro said, “and the failure of one or more of these dams is assured unless strict engineering standards are imposed.” The Southeast is home to 40 percent of the nation’s coal ash impoundments, and according to the EPA, contains 21 of the nation’s 45 high hazard dams.
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EPA Gets Its Day in Court: Hearings Begin on Spruce Mine No. 1 Appeal

Tuesday, April 16th, 2013 - posted by Jil

By Brian Sewell

Dozens of coal industry groups and environmental organizations crowded into a Washington, D.C., courtroom on March 14 for the latest chapter of a long legal battle. A three-judge panel heard arguments on the legality of the U.S. Environmental Protection Agency’s decision to veto permits for one of the largest mountaintop removal coal mines ever proposed in Appalachia.

The original permits for Mingo County Coal’s Spruce Mine No. 1 were approved by the U.S. Army Corps of Engineers in 2007 after the company addressed EPA concerns by reducing the size of the permit by 835 acres. In 2011, however, the EPA revoked the permits, citing unacceptable damage to water quality. The agency said permitted valley fills at the mine would bury more than six miles of streams with millions of tons of mining waste, eliminating all fish, small invertebrates, salamanders and other wildlife.

The action received swift condemnation from Appalachian politicians and was challenged immediately by the National Mining Association. On March 23, 2012, the veto was overturned in a D.C. District Court. In her decision, Judge Amy Berman Jackson wrote that the EPA’s attempt to veto permits after they had been issued is “unprecedented in the history of the Clean Water Act.” The EPA is back in court appealing the decision to overturn its veto.

Lawyers representing Mingo County Coal, a subsidiary of St. Louis-based Arch Coal, argue that if the EPA’s veto stands, it will “create uncertainty, hinder investments and stifle economic growth in the region.” The EPA maintains that such concerns are unfounded because it has only retroactively rescinded two other permits in the 40 years since the Clean Water Act created the permitting process.

Arguments made on the EPA’s behalf by the Justice Department maintain that the agency’s role is not to duplicate the Corps’ responsibilities, but “to exercise independent judgment, based on the record, when deciding under Section 404 of the Clean Water Act whether adverse effects to waters of the United States will occur and whether or not these effects are acceptable.”

The court’s decision could have implications for the approval of valley fill permits at surface mines by deciding just how much environmental damage is “unacceptable” when it comes to mountaintop removal.

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Clean Water News: Congress Backs Down, N.C. Steps Up

Tuesday, March 26th, 2013 - posted by sandra

Thallium was once used as rat poison. Now DENR is suing Progress Energy for Thallium polluting the French Broad River from its Asheville power plant.

Last week, there was concern that the U.S. Senate budget resolution would end up containing measures to decrease funding for initiatives of the U.S. Environmental Protection Agency such as the release of guidelines for coal ash disposal and rules to ensure states are following water quality standards. Thanks to good Americans like yourself speaking up, the Senate budget remained free of dirty water amendments.

While the budget resolution is non-binding, and the Senate Appropriations Committee decides how funding gets allocated later in the process, the resolution send a strong message regarding the Senate’s priorities. Unfortunately, one of the more controversial amendments that did pass was in support of building the Keystone XL pipeline.

While the Senate backed down on loading up the budget resolution with dirty water clauses, the North Carolina Department of Environment and Natural Resources stepped and up and decided to take legal action against Progress Energy for the release of toxic heavy metals from their Asheville plant into the French Broad River. 

Western North Carolina Alliance, Sierra Club, and Southern Alliance for Clean Energy had filed a notice of intent to sue Progress Energy for violating the Clean Water Act for unpermitted seeps into the French Broad River. It appears DENR took notice and is now taking up their own case against Progress Energy. DENR is seeking injunctive relief and demanding Progress Energy solve the issue in lieu of the state seeking monetary damages.
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Will This March Madness Be An Upset for Clean Water?

Friday, March 22nd, 2013 - posted by sandra
Basketball

Help Prevent a Clean Water Upset (Picture by mvongrue, hosted by Flickr)

UPDATE: The Senate Budget Resolution passed without any of the amendments mentioned below. Victory!

As most of you know, between the federal House of Representatives and the Senate, the Senate is usually the level-headed older brother of the family and tends to be a more deliberative legislative body. But this month the Senate decided it wanted to shake things up a bit by creating a little March Madness of its own.

The Senate is going through a seemingly insane process known on Capitol Hill as a vote-a-rama to reach a deal on a final Senate budget resolution. Senate leadership is allowing any number of amendments to be presented and voted on — whatever they can get done in 50 hours.

While all the amendments have yet to be presented, several of them take aim at the U.S. Environmental Protection Agency’s ability to do its job, which is to protect our air, water and public health. Some of the amendments could stop the EPA from:

    - Making sure states are complying with and improving water quality standards in accordance to the Clean Water Act.
    - Creating national standards for how coal ash, the toxic waste produced by coal-burning for electricity, is disposed and stored.
    - Restoring critical Clean Water Act protections to streams, wetlands and drinking water standards.

TAKE ACTION: We are asking supporters to contact their Senators. If you haven’t yet, there is still time.
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North Carolina Cares About Clean Water

Thursday, March 7th, 2013 - posted by Ian Watkins

According to a recent report by Land for Tomorrow, 91 percent of residents in North Carolina and surrounding states believe it is “important” or “very important” to conserve and protect water and other natural resources. Additionally, a 2002 publication of the N.C. State Economist it was found that people are willing to pay more money in the form of travel expenses in order to enjoy higher levels of water quality. Based on an estimated 14.7 million water-related recreation trips each year by North Carolinians, annual economic savings from water improvements are estimated to be $11.9 million for the Neuse waterway, $14.7 million for Cape Fear improvements, and $6.5 for Tar-Pamlico. While protection of natural resources may sometimes be a divisive topic, residents of North Carolina share a common desire for clean water, with good reason. Clean water is good for the environment and the economy.

The benefits of clean water can also be understood by realizing the costs associated with water treatment. According to a report by the N.C. Division of Water Quality, costs to be considered include additional water treatment, developing new drinking water sources or providing emergency replacement water, public information campaigns when pollution incidents arouse public and media interest, and payment for consulting services and staff time. When Burlington, N.C., found contaminants in their source water that were not eliminated during treatment, city subsidies were used to eliminate it from source waters.

Perhaps a more important measurement of the economic benefits of clean water is the success of publicly funded solutions for addressing water pollution. The N.C. General Assembly established the North Carolina Clean Water Management Trust Fund in 1996 and its funding of resource conservation has strengthened the state’s economic vitality. According to a report by the Trust for Public Land, every dollar invested In the N.C. Clean Water Management Trust Fund returns four dollars to the state in the areas of drinking water protection, flood control, tourism and outdoor recreation.
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