Posts Tagged ‘Coal’

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 3 million 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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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.

Virginia lawmakers act on energy bills

Monday, February 23rd, 2015 - posted by hannah
There has been no shortage of activity on energy policy during Virginia’s 2015 legislative session.

There has been no shortage of activity on energy policy during Virginia’s 2015 legislative session.

As the Virginia General Assembly enters the final days of its 2015 session, we can look back on five intense weeks.

Among the many issues our lawmakers labored over, a few were explosive enough to consistently make headlines. Energy policy was one of those issues thanks largely to electric utilities’ efforts to capitalize on worries about upcoming federal rules on carbon pollution.

Here’s a recap of the drama, along with a few important policies that received less fanfare.

>> First, a measure that shocked newspaper editorial boards, dismayed consumer groups, and stunned many of us who have challenged the utilities’ business-as-usual plans, but passed the legislature easily: under SB 1349, Virginia would see a five-year period when state regulators do not review rates set by Dominion Power and Appalachian Power, likely preventing any refunds of utility over-earnings to customers. The base portion of rates will be fixed, but other charges related to fuel costs can still rise during the period.

Political dynamics and election sensitivities made this legislation especially charged, and ultimately some of our top legislative champions for advancing clean energy stepped in and saw to it that the measure includes a designation for up to 500 megawatts of solar energy to be in the public interest, thereby authorizing state regulators to approve large scale solar farms — of which there are exactly zero in Virginia right now. The champs also added provisions for utilities to pay for low-income home weatherization programs.

Gov. McAuliffe signed the bill into law on Tuesday.

>> Last Wednesday, legislation passed both houses capping Virginia’s coal production and employment tax credits at $7.5 million annually. Appalachian Voices and other advocates have called for comprehensive study of whether such credits have their intended effects, including sustaining coal-related jobs in Southwest Virginia. A study by Downstream Strategies a few years ago suggests they do not. SB 741, which originally extended the tax credits by five years, is expected to come out of conference committee this week extending the credits for only two years while analysis is done by a reform-oriented panel.

>> On to one enormous highlight of the session: several bills containing extreme language against the U.S. Environmental Protection Agency’s proposed Clean Power Plan — aimed at reducing carbon pollution from power plants — never made it out of committee. One was an effort to empower the General Assembly to sue the EPA. Another bill that is still alive directs the state Department of Environmental Quality to consider concerns and take the input of legislators, and requires the General Assembly to express its approval of DEQ’s compliance plan in the form of a resolution.

>> Lastly, a bill based on a central concept of Gov. McAuliffe’s Energy Plan creates a Solar Energy Development Authority for Virginia. In spite of some legislators’ concerns about growing government, the promise of boosting job growth in the solar industry propelled this measure through both houses. A net energy metering expansion bill also still stands a good chance of passing.

With some great concepts like the Virginia Coastal Protection Act unable to find sufficient support in committee to pass this year, the work to pave the way for next year’s legislative efforts lies before us. Citizen contact with delegates and senators can continue year-round, and there are many ways to stay engage.

In addition to calling or writing your elected officials, enrolling in an energy-efficiency program offered by your power company or going solar sends a clear signal to our legislators about Virginia residents’ preferences and expectations on important energy policy issues.

“Clean coal” is on the fritz

Wednesday, February 18th, 2015 - posted by brian

By Brian Sewell

Cost overruns and construction delays are dampening enthusiasm for carbon capture and storage technologies

A rendering of FutureGen 2.0. Earlier this month, the U.S. Department of Energy pulled its funding from the project, which was intended to demonstrate the feasibility of carbon capture and storage technology on a commercial-scale. Credit Department of Energy.

A rendering of FutureGen 2.0. Earlier this month, the U.S. Department of Energy pulled its funding from the project, which was intended to demonstrate the feasibility of carbon capture and storage technology on a commercial-scale. Credit Department of Energy.

As one of the most high-profile and hyped-up projects of its kind, the FutureGen “clean coal” plant in Illinois was supposed make history. Its backers saw in it the key to unlocking an inherently dirty energy source’s promise in a world coming to grips with climate change.

So the announcement earlier this month that the U.S. Department of Energy is backing out of its $1.1 billion funding commitment to the FutureGen project, citing a desire to “protect taxpayer interests,” sent a shockwave through the coal sector and investors, energy analysts and environmentalists all took note.

But the news that “clean coal” technology has taken yet another hit should not come as a surprise. Even with $6 billion in commitments under the Obama administration, carbon capture projects just don’t have the track record needed to pique private investors’ interest.

Every form of carbon capture technology comes with technical and technological drawbacks that translate to enormous costs. A commercial-scale “clean coal” plant using even the most advanced technologies may increase the cost of electricity by up to 80 percent, according to DOE. These challenges make commercial-scale carbon capture projects outcasts when it comes to competitive energy markets, where traditional fossil fuel plants and, increasingly, large-scale and distributed renewable projects represent the most cost-effective power sources.

Convinced that coal will remain one of the nation’s foremost energy sources for decades to come, DOE will put billions more into advancing “clean coal” technology, attempting to overcome its economic pitfalls and keep burning the dirtiest fuel around.

FutureGen’s Downfall

FutureGen 2.0 planned to transport CO2 waste approximately 30 miles  through pipelines before being injected in deep saline formations.

FutureGen 2.0 planned to transport CO2 waste approximately 30 miles through pipelines before being injected in deep saline formations. Click to enlarge.

The idea for FutureGen arose in 2003 under the Bush administration. The plan was for the FutureGen Industrial Alliance, a coalition of mining and energy companies including Alpha Natural Resources and Peabody Energy, to oversee retrofits to an existing coal plant and, in the process, prove the feasibility of burning coal, then capturing and storing the carbon emitted underground.

But the project soon began suffering from the delays, cost overruns and other challenges that will be its legacy. FutureGen was canceled, for the first time, in 2008 before construction could begin.

In 2010, the Obama administration used stimulus money to give FutureGen new life as FutureGen 2.0, a smaller proposed plant that would use a different technology to capture its emissions, but still show how carbon capture could make a more climate-friendly coal plant. For a time, everything seemed to be going in FutureGen’s favor. But then familiar cracks started to appear.

The Illinois Commerce Commission approved a controversial plan in 2012 to require utilities, and therefore their customers, to buy all the electricity generated by the FutureGen plant for 20 years — likely at dramatically over-market rates. The decision may have reassured some private investors, but challenges to the decision by the utilities themselves were headed to the Illinois Supreme Court.

The Sierra Club challenged the air pollution permit granted to FutureGen by the Illinois Pollution Control Board, saying the State of Illinois should hold FutureGen to its promise to build a “near-zero emissions” plant. FutureGen needed to convert a World War II-era boiler at the plant to one compatible with the oxy-combustion technology it planned use to capture its emissions. The Sierra Club argued that allowing FutureGen to convert the boiler would violate the federal Clean Air Act unless it obtained the appropriate permit from the U.S. Environmental Protection Agency.

All of this is to say that the DOE isn’t entirely, or even mostly, responsible for FutureGen’s failure. Unresolved legal battles, environmental and economic concerns all combined to hurt the chances of attracting enough private investment to bring the $1.65 billion project online. It became clear that the project could not be completed by September 2015, the deadline for federal funds to be spent under the 2009 stimulus, so DOE pulled the plug.

According to DOE, approximately $116.5 million of the total award had been invested in the plant since 2010.

The Sierra Club, which has called FutureGen a boondoggle from the very beginning, said the news reflects a national trend toward embracing clean energy.

“This project has gone through a decade of false starts and with today’s announcement, $1 billion in federal funding and hundreds of thousands of dollars in Illinois ratepayer financing can be freed up for investment in clean energy,” Holly Bender, Deputy Director of the Sierra Club Beyond Coal campaign, said in a statement.

Coal industry groups directed their frustrations toward the Obama administration and mostly overlooked the host of other challenges facing FutureGen.

Hal Quinn, president of the National Mining Association, said in a statement that DOE’s decision to end funding for FutureGen “cannot be reconciled with the [Obama] administration’s proposal to require CCS as the only acceptable technology for any new coal-fueled power plant in the U.S.”

Proceed with Caution

A "first-of-its-kind" technologically speaking and the most expensive coal plant of all time, Mississippi Power's Kemper Plant has put ratepayers at risk in search of unproven and far-off returns. Photo from Wikipedia.

A “first-of-its-kind” technologically speaking and the most expensive coal plant of all time, Mississippi Power’s Kemper Plant has put ratepayers at risk in pursuit of unproven and far-off returns. Photo from Wikipedia.

Carbon capture is a must if future U.S. coal plants — if there is such a thing — hope to meet regulations on greenhouse gases being developed under the Clean Air Act.

Analysts say the only way to create a market for carbon capture technology, at least one that would attract significant private capital, is by capping power plant pollution. But groups like the National Mining Association lambast the president and the U.S Environmental Protection Agency for pursuing policies that will limit carbon pollution from power plants and steer investments toward alternative forms of energy, including “clean coal.”

Even with a strong climate policy, some experts doubt commercial-scale “clean coal” projects will be around in time to make a meaningful contribution to reducing carbon pollution. Sean Casten, the president and CEO of Recycled Energy Development, recently drew the comparison between the likelihood of the technology’s success and the existence of unicorns.

“I suppose it’s possible that there will suddenly be a huge pot of capital willing to invest billions of dollars in an unproven technology with long construction times and regulatory-dependent cash flows,” Casten told SNL Energy. “But unicorns are more likely.”

Another notable casualty is Tenaska’s $3.5-billion Taylorsville, Ill., plant, which the Nebraska-based energy developer canceled in 2013. The company cited market conditions that led it to focus on developing natural gas and renewable energy facilities instead. But the fact that Illinois lawmakers would not agree to a 30-year contract to buy electricity from the plant, and pass those high costs on to ratepayers, had something to do with it.

With the Taylorsville plant and FutureGen off the table, the U.S. is left with one utility-scale carbon capture project currently under construction. But Mississippi Power’s Kemper Plant, which received a $270 million grant from DOE, is like the projects before it: more of a cautionary tale than a positive sign for coal’s future.

Cost increases have been like clockwork at Kemper. Initially estimated to cost $2.2 billion, the price to build the plant has ballooned to $6.17 billion since 2009, making it the most expensive coal plant in U.S. history. Southern Company, the parent company of Mississippi Power, announced a $45 million increase this month.

$6 billion and counting: Cost increases at the Kemper Plant have been like clockwork since 2009.

$6 billion and counting: Cost increases at the Kemper Plant have been like clockwork since 2009. Graphic by the Institute for Energy Economics and Financial Analysis.

To help pay the bill, the Mississippi Public Utilities Commission approved an 18 percent rate hike on Mississippi Power in March 2013, and the company says it’s likely to seek another increase of at least 4 percent to help pay off $1 billion in bonds that the state legislature is allowing it to issue.

“This is the largest rate increase in the state of Mississippi’s history, and this is the largest transfer of wealth from the people to a corporation in the state of Mississippi’s history,” Public Service Commissioner Brandon Presley told Mississippi Watchdog in 2013.

Presley was the only dissenting vote when the commission approved the rate increase. But now the state’s highest court is on his side. Last week, the Mississippi Supreme Court reversed the rate increase after finding the utilities commission hadn’t ruled on the “prudency” of the Kemper Plant’s growing cost. The court directed Mississippi Power to refund ratepayers about $271 million attributed to the rate increase.

The Kemper plant is slated to open in mid-2016, more than two years behind schedule.

The quest to create a cleaner future for coal increasingly rests on the question of how much we’re willing pay for it.

Obama budget creates opportunities for Appalachian communities

Tuesday, February 3rd, 2015 - posted by brian
The Obama administration's budget includes several proposals that would create economic opportunities in central Appalachian communities struggling to weather coal's decline.

The Obama administration’s budget includes several proposals that would create economic opportunities in central Appalachian communities struggling to weather coal’s decline.

Central Appalachian communities weathering coal’s long decline would see a boost in funding under the White House budget released on Monday.

The Obama administration’s 2016 budget calls for hundreds of millions of dollars in federal funds to be spent cleaning up abandoned strip mines, and to support economic development and workforce training in mining communities facing massive layoffs as coal is increasingly outcompeted in America’s energy mix. More than 13,000 coal jobs have been lost in central Appalachia since 2011.

One of the most significant proposals included in the budget is for an additional $200 million per year over the next five years for the federal Abandoned Mine Lands program to restore dangerous unreclaimed mines. According to the U.S. Office of Surface Mining Reclamation and Enforcement, which administers the program, additional funds would assist communities most severely impacted by coal “in a manner that facilitates economic revitalization on reclaimed lands and restored waterways.”

The program is funded through a combination of a per-ton tax on coal production and discretionary spending, but has consistently fallen short of its goals. More than $3 billion worth of high-priority sites remain unreclaimed — most of which are in central Appalachia. The Kentucky Division of Abandoned Mine Lands, for instance, lists $445 million worth of unfunded projects. Groups working in the region have called on the administration to reimagine the way funds are distributed through the program by coupling workforce development and environmental restoration.

Other funding increases called for in the president’s budget include $20 million for the Labor Department’s Dislocated Workers program to provide employment services and job training specifically for laid-off coal miners and power plant employees to help them transition to jobs in other fields. The Appalachian Regional Commission would see its $70 million budget grow by roughly one-third, with $25 million in new funding directed to communities “most impacted by coal economic transition” to support a range of economic development initiatives.

The need for job creation and economic diversification in Appalachia could not be clearer. As Congress debates the president’s budget and puts forward its own proposals in the coming months, we hope they will carefully consider ways to build a truly sustainable economy in the region.

A statement from Appalachian Voices Legislative Associate Thom Kay:

There’s a great deal the president must do to help build a robust clean energy economy and ensure that disproportionately impacted areas like Appalachia are not left behind. The Obama administration’s proposed budget shows that the White House understands the need for economic diversification in Appalachia. It shows that the calls of Appalachian communities for new opportunities have been heard.

Proposals are not actions, however, and the proposed budget may never become law. The good news is that not every action to diversify the Appalachian economy requires changes to the federal budget. We will continue to use every tool available to urge the White House to commit to turning the proposals in this budget into realities, regardless of the actions of Congress.

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.

Well, that was quick

Thursday, January 15th, 2015 - posted by thom
Rep. David Vitter

Sen. David Vitter

The new U.S. Senate couldn’t even make it one week before introducing a horrible bill. The 114th Congress began on January 6, and Sen. David Vitter (R-LA) only managed to restrain himself 24 whole hours before introducing legislation to weaken the Clean Water Act.

Sen. Vitter’s bill, S.54, would limit the Environmental Protection Agency’s ability to veto permits for mountaintop removal valley fills. It is our view that valley fills—in which the dirt and rock from blasting the tops off the mountains are dumped into streams and valleys—should not even exist. We’ve got the science to back that up. But Vitter and other coal industry allies in Congress want the fills to continue to be permitted, and want them regulated exclusively by the Army Corps of Engineers, completely removing the EPA from the process.

These coal industry advocates want the Corps in charge not because they think the agency has the same level of water quality expertise as the EPA, but because the Corps does not have the same expertise, and is therefore more likely to just hand out permits that pollute our water.

The big difference between this Congress and last Congress is that bills like S.54 have a chance at passing the Senate. Vitter’s bill is virtually identical to multiple bills that have been introduced in the past, but they didn’t get committee hearings, and never even came up for votes. This year, they probably will.

Thanks to years of hard work by Appalachian Voices and our coalition partners, we have champions in the Senate who will work to stop these dangerous bills from becoming law. Senate Republicans established a precedent over the past eight years that all bills need 60 votes to pass, and the coal industry will have a very difficult time finding 60 senators to vote for more mountaintop removal mining pollution. But we will have a fight on our hands.

President Obama is also expected to use his veto power to stop the worst bills from becoming law. We hope not to depend on vetoes, but if we can’t stop something bad from passing the Senate, the President is our backstop.

Our greatest hope for the next two years is that the White House takes advantage of its veto power and doesn’t let the threat of coal industry bills to prevent strong actions to stop mountaintop removal. Because there’s a lot left to do, and not a lot of time in which to do it.

An interview with Christopher Scotton, author of “Secret Wisdom of the Earth”

Thursday, January 8th, 2015 - posted by brian
Christopher Scotton. Photo courtesy of Grand Central Publishing.

Christopher Scotton. Photo courtesy of Grand Central Publishing.

By Brian Sewell

“Secret Wisdom of the Earth,” the debut novel by Christopher Scotton released this week, is a coming-of-age story that takes familiar themes — tragedy and the quest to find healing — and explores them with the backdrop of a Central Appalachian community beset by mountaintop removal coal mining.

Set in 1985 in the fictional Medgar, Ky., a richly conceived town full of even richer characters, “Secret Wisdom of the Earth” traces the summer 14-year-old Kevin Gillooly spent at his mother’s childhood home in the mountains, as he comes to grips with the tragic death of his younger brother.

With Kevin as the narrator, Scotton weaves together stories spanning generations of Medgar residents, close friends and unabashed enemies, including many who are struggling with questions of identity and whether or not to abide by the bounds of tradition.

Mountaintop removal, at first, is depicted as a pervasive but rarely-seen evil encroaching on Medgar, with a prideful, blustering coal baron acquiring more and more land surrounding the town. Ultimately, however, it’s the friction created in the small community by mountaintop removal that precipitates a spellbinding story of family, friendship and overcoming the odds that will change Kevin’s life and the town of Medgar forever.

Released on Jan. 6, the ambitious novel is popping up on lists of new and noteworthy titles and editor’s picks. On Jan. 11, Scotton will start a 15-date reading tour, stopping in many cities in Appalachia and across the Southeast.

After reading an early release of the novel, we spoke with Scotton about its heartrending themes, its Appalachian setting and his enduring relationship to the region.

Brian Sewell: You started working on the novel more than a decade ago. Looking back, can you talk about how you initially conceived of the story and went about shaping it into the novel we get to enjoy today?

Christopher Scotton: The kernel of the idea came to me when I was in my twenties. I met a friend’s mother, who was this beautiful women that had this intrinsic sadness about her. I don’t know if you’ve met people like that that have a facade of happiness, but in their unguarded moments you can see that there’s something not quite right. I asked my friend about it and he told me the story of how his older brother died. This was before he was born and his older brother was three and died in the most horrific accident in their front yard that you could possibly imagine, and 30 years later the mom who witnessed it still hadn’t healed. I was so absolutely aghast by that and I knew I had to write a novel about it; how could you ever possibly heal from that?

Now that I’ve become a parent many years later I can understand exactly why she would often look through me when I was talking to her at some place in the past. And now I know why, because you can’t fully heal from something like that. That spurred the idea in my head to write a novel about that awful tragedy and its effect on a family. I wanted to write a coming of age novel so I thought that having Kevin as the narrator, having him recover from that tragedy I figured would make a good story. A parent could never really recover, but maybe a sibling could.

The next question was setting. Do I locate it in the suburbs, where I grew up? When I was in my twenties, I was doing a lot of backpacking, camping and backcountry survival stuff with my college friends and I just fell in love with Appalachia. As I visited the region, I just fell in love with the people and the mountains. It’s such a beautiful place. I went down to eastern Kentucky and realized the paradox of that particular part of Appalachia and thought it would make a good backdrop for Kevin’s story.

I really didn’t connect mountaintop removal to it right away. I had started writing a story centered in eastern Kentucky. The tragedy was there, I had developed the characters, but I hit a narrative logjam and nothing was connecting. I went down to eastern Kentucky for research again and saw my first mountaintop removal mine and could not believe that this practice was allowed to go on. Once I saw that, it all clicked in; the permanent loss of the mountains in eastern Kentucky became so obviously allegorical to the loss that the main characters feel. Once I connected those two together, the rest of the story flowed so easily.

BS: Tell us about some of the other characters such as Kevin’s grandfather Pops that we really get to know. Did they emanate from the setting itself or personal experiences?

CS: I spent a lot of time in eastern Kentucky just meeting folks and listening to their stories and getting to know them. In small towns throughout Appalachia, you just meet wonderful, quirky, interesting people who you want to write about because they’re so real and interesting. You also meet some awful people, just like everywhere else. You meet wonderful people and awful people in New York City too. There are pockets of beauty and pockets of evil absolutely everywhere. A lot of the town characters that I wrote about are just folks that I observed and met while in Kentucky.

“Secret Wisdom of the Earth”, the debut novel of Christopher Scotton, is out this week. Cover photo courtesy of Grand Central Publishing.

“Secret Wisdom of the Earth”, the debut novel of Christopher Scotton, is out this week. Cover photo courtesy of Grand Central Publishing.

I didn’t have a grandfather like Pops in my life when I was an adolescent. Pops is the grandfather I wish I had and the grandfather that I hope to become; a kind of amalgamation of those two people. Everyone needs a wise mentor in their life and I didn’t have one growing up. Kevin certainly requires it given the tragedy he’s gone through. Adolescence is hard enough, even in the best of circumstances. But when you’ve gone through something like he’s gone through and layer on the guilt from his father, you need someone who can ground you, and Pops definitely does that for him.

BS: Characters like Pops challenge the simplistic images of Appalachian prevalent in media and pop culture. Could you remark on the different brands of wisdom found in the book?

CS: You could argue that in the novel there are several stereotypical characters; Paul is a gay hairdresser and you can’t get much more stereotypical than that. But the reality is that there are elements of truth in stereotypes and you see that everywhere. One thing that my trips down to eastern Kentucky, West Virginia and Virginia really taught me is that, sure, there are stereotypical folks in that region but there are many folks that don’t fit that mold and they’re probably there in equal measure. There is wisdom in both.

Pops is someone who loves the land and has the capacity to listen to the earth. He goes off by himself into the woods and just is, existing in the woods by himself. At times in my life when I have done that, when I’m off camping by myself for a few days, I listen to the earth and appreciate the earth in ways that you can’t from an office or even camping with friends. You gain so much wisdom and appreciation for how complex and interconnected the earth is when you do that.

The people in Appalachia tend to be rich just in and of itself. If a capable writer can create good characters, they can do that in any setting and any plot. Appalachia gave me great material to work with and I’m very thankful for that.

BS: You introduce mountaintop removal from an almost innocent perspective. From Kevin’s perspective it’s this off-in-the-distance, over-a-couple-of-ridgelines thing going on. But as you get deeper into the book and Kevin grows into the community, you get closer and closer to the destruction.

CS: Kevin’s experience with mountaintop removal is very similar to mine. I visited the region, eastern Kentucky specifically, three or four times before I had seen a mountaintop removal mine. I had been camping and backpacking extensively but never come across it. You really don’t see it until you get off-trail. I had no sense of what was going on.

I was down in Williamson, W.Va., and heard an explosion and asked someone what’s going on and they described the blasting. That Sunday, I snuck through a fence and climbed through the woods and came to the edge of the operation and looked over two miles of moonscape. It disgusted me. So Kevin’s experience was very much my experience.

BS: Something the novel does well, considering when it takes place, is looking at mountaintop removal as a human issue and a little-understood emerging threat that’s dividing the communities where it’s taking place.

CS: After I saw the mountaintop removal mine, I probably asked someone, “Do you have any idea what they’re doing up there?” But you talk to someone whose family member works up there, they have a very different perspective. I was struck by how it divided the folks that I talked to. I thought that was a really sad and interesting aspect of it. Those that live near it and have the put up with the devastation often hate it, but some of them have relatives that work in the mines so it really is a sad paradox.

Now the pendulum has swung to where, in towns beset by large mining operations, there seems to be a majority of folks that really don’t want it there. It’s gotten so far out of control and the damage is so well documented by organizations like yours. Certainly in 1985, when the novel takes place, and even in 2000, when I was doing the bulk of the mountaintop removal site work, there was less understanding of the damage.

BS: What’s your relationship to the region after writing “Secret Wisdom of the Earth?”

CS: Calling it a second home wouldn’t be accurate because I don’t visit as much as I would like. But I feel a kinship with eastern Kentucky and with the people there because, without their help and support and endorsement, I couldn’t have created this world in my head to tell Kevin’s story. I feel a tremendous connection to that region and the people. I’m so looking forward to spending time in the region and getting to know it again.

BS: You’re heading back to the region to do a reading soon. Have you gotten a lot of positive feedback from readers in Appalachia?

CS: A lady from a major coal-mining county in Kentucky who told me, “You did this region proud.” That was the best praise I think I’ve gotten — from someone who is from the area and felt I did the region justice, dealing with the region with humanity and with truth.

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.