Posts Tagged ‘EPA’

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.

A silver lining in EPA’s Coal Ash Rule

Thursday, January 8th, 2015 - posted by amy

epa coal ash ruleIt took six years, two costly spills, and a lawsuit, but last month, the Environmental Protection Agency finally issued the first-ever federal standards for the disposal of coal ash. It didn’t wow us, there were no ticker tape parades, and the status quo of corporate sway over rulemaking left us with a rule that lacks brawn and relies on industry “self-implementing,” without action from any federal or state agency.

But the Disposal of Coal Combustion Residuals from Electric Utilities Rule does have a little brain, and it gave us something solid to work with going forward with, which is better than the nothing we had before. The journey of a 1,000 miles starts with a single step, someone once said. The new rule is just that, a first step. It didn’t resolve the issues, but it did move us one step forward, technically speaking, this is progress.

Here’s what the new federal coal ash rule does:

  • Defines coal ash as non-hazardous, as was expected, rather than hazardous waste . Coal ash will now be treated at least as stringently as household and commercial waste. Before this rule, your household garbage of coffee grinds, paper, and banana peels were better regulated;
  • Sets location restrictions for new, existing, and expanding coal ash impoundments and landfills, such as outside of wetlands, above the uppermost aquifer, and unstable areas such as seismic zones. Coal ash disposal units that don’t meet these restrictions must demonstrate they can still meet water quality standards through engineering, or be closed;
  • Requires new or expanding impoundments to be lined, and new or expanding landfills to have liners and leachate collection systems;
  • Requires a monitoring and control plan for fugitive dust for each site;
  • Establishes criteria for ensuring structural integrity of disposal units, and requires routine structural assessments. If a unit cannot meet the minimum safety standards, it must close;
  • Defines filling in surface mines (clay, coal, sand, etc.) with coal ash as solid waste disposal, not as a “beneficial use” of coal ash. This distinction means any mine-fill site must meet the new landfill standards, including having a liner and leachate collection system;
  • Requires groundwater monitoring systems to be installed within 30 months at all coal ash disposal locations. This will begin the process of obtaining data to assess where contamination has occurred;
  • Requires closure of unlined units where monitoring shows significant exceedance of groundwater standards. Since many clean water advocates, academics, and citizens have already obtained a wealth of data from independent testing showing contamination at many sites, it seems only a matter of time before we can prove how many currently unlined sites should be either closed or lined;
  • Requires that coal ash unit owners–mostly electric utilities like Duke Energy and Dominion Power — make all monitoring data and reports publicly available and maintained on a public website. This is perhaps the “silvery-est” lining, giving citizens the information they need to make sure sites are implementing requirements (monitor your local site from the comfort of your living room!); and
  • Provides an avenue for citizens to bring a federal lawsuit against companies that don’t meet the minimal federal standards.

Now, let’s take a look at what the federal coal ash rule most notably does not do:

  • Require states to adopt or implement these standards;
  • Require federal enforcement of the rule;
  • Guarantee regulatory oversight by requiring a state or federal permit program;
  • Call for an end to the use of surface impoundments for coal ash disposal;
  • Require existing impoundments to be retrofitted with liners (unless groundwater contamination is proven); and
  • Define closure such that de-watering and “cap-in-place” –methods that fail to fully protect public health and the environment — are prohibited.

In North Carolina, the Coal Ash Management Act, passed last year, meets and in some way exceeds the new federal rule, including limiting the cap-in-place option only to sites deemed low-priority, instead of being an option at all facilities. It also prohibits any new surface impoundments. As long as the incoming N.C. General Assembly does not propose changes to weaken the current law, North Carolinians will have a few extra protections not available to residents of other states — with the exception of South Carolina, where all electric utilities there are currently in the process of removing coal ash from their unlined pits and moving it to safe lined, storage.

For non-Carolinian states, there is a much harder row to plow in getting meaningful clean-up of coal ash waste sites. But the good news is the new groundwater monitoring and public disclosure requirements should result in data proving contamination at a plethora of sites–provided, of course, that companies are honest and report accurately, and assuming they “self implement” the requirements in the first place. Surface or groundwater contamination has already been documented in North Carolina, Georgia, Tennessee, Wisconsin, and Delaware, to name a few states. We know, therefore, that contamination is very likely happening at more sites, we just have to obtain the proof.

If facilities fail to “self-implement” the rule, states do have the ability to bring a federal lawsuit against them. It would seem that even the EPA finds this action unlikely, however, humorously mentioning such state action as a parenthetical side note in its discussion of rule implementation. However, the EPA repeatedly notes that citizens provide a “crucial role in the implementation and enforcement” of this kind of environmental law, and that part of the agency’s requirement to make the data and reports available on a public website was to assist citizens. The EPA will also be offering outreach and education to citizens and groups so they understand their role in compliance.

We must rise to the EPA’s challenge to help implement and enforce the rule. The EPA basically said, “Here’s the rule, you folks enforce it.”

Thanks, EPA, we most certainly will!

EPA finalizes long-awaited coal ash regulations

Friday, December 19th, 2014 - posted by brian
The failed coal ash pond at Duke Energy's Dan River plant.

The failed coal ash pond at Duke Energy’s Dan River plant.

The day we’ve been waiting for has finally come. Yes it’s Friday, but today was also the U.S. Environmental Protection Agency’s court-imposed deadline to release federal regulations for coal ash storage and disposal.

As expected, the rule it took the EPA five years to finalize is modest at best, falling short of what it takes to truly address the prevalent problems associated with coal ash such as contamination of waterways and drinking water supplies.

Rather than classifying coal ash as the hazardous waste it clearly is, the EPA rule places it under Subtitle D of the Resource Conservation and Recovery Act, the nation’s primary law for regulating solid waste. Other types of waste regulated under Subtitle D include household garbage — you know, banana peels, candy wrappers and the like.

“For the thousands of citizens whose groundwater is no longer safe for consumption due to leaching ponds or whose air is contaminated by fugitive dust, failing to regulate coal ash as hazardous is a slap in the face,” says Amy Adams, Appalachian Voices’ North Carolina campaign coordinator. “While we’re pleased that we finally have federal regulations, they are far from perfect and demand we continue fighting for cleanup of these toxic sites.”

U.S. coal plants produce around 140 million tons of coal ash each year. Much of that is stored near waterways in unlined pits held in place by earthen dams. Even years after coal plants have closed, ponds that have stored toxic coal ash for decades can continue to pollute water and put communities at risk.

In 2012, Appalachian Voices and several partner groups, represented by Earthjustice, sued the EPA in federal court to force the agency to issue a rule. Late last year our coalition reached a settlement holding the EPA to today’s deadline.

According to the EPA, the rule establishes safeguards to protect communities from catastrophic spills, like the Kingston, Tenn., spill in 2008. It was the disaster in Kingston that spurred the agency to act.

But more spills, like the one at Duke Energy’s retired Dan River plant in Eden, N.C., have happened in the time since, representing hundreds of millions of dollars in environmental and economic costs.

To address the threat of another catastrophic failure, the EPA rule calls for the closure of inactive sites that fail to meet engineering and structural standards, more frequent inspections and monitoring, and restrictions on where coal ash impoundments are located.

The rule also requires water quality monitoring and public disclosure of the results, which should help groups like Appalachian Voices and our community partners better track pollution and take companies to court that fail to stop it. More frequent reports and accurate information coming directly from utilities could be a big boost for efforts to protect clean water, as long as coal plant operators commit to transparency.

But while the regulations set a minimum federal criteria, states are not required to adopt them, develop a permitting program, or submit a program to the EPA for approval. That’s all more of a suggestion, really. So while the EPA says it expects states to be “active partners” in regulating coal ash, well, states unfriendly to the EPA may feel differently. And should states refuse to clean up coal ash pollution or fail to meet the new standards, the EPA will not step in to enforce the rule. That job will still fall to citizens who identify the insidious pollution and file lawsuits to correct it.

According to Earthjustice, unsafe disposal of coal ash into the nation’s more than 1,400 coal ash dumps has contaminated more than 200 rivers, lakes, streams and sources of underground drinking water in 37 states. There are 331 high- and significant-hazard coal ash ponds in the country. Many of the highest hazard sites are concentrated in the eastern U.S.

Learn more about our work to clean up coal ash.

Fighting Mountaintop Removal During the Obama Years

Friday, December 19th, 2014 - posted by allison

It’s Still Happening

Editorial by Thom Kay, Appalachian Voices Legislative Associate

In 2009, after President Obama took office, there was a great deal of optimism among Appalachian Voices and our allies. New agency heads and White House spokespersons parroted the talking point that “the administration will do what the science calls for.” In Appalachia, the science calls for an end to mountaintop removal coal mining.

It’s been nearly six years since the Obama administration took over. In that time, together with those who have been directly impacted by mountaintop removal, Appalachian Voices staff has met with the U.S. Environmental Protection Agency, the Department of Interior, the Army Corps of Engineers, the White House Council on Environmental Quality, and the Office of Surface Mining, Reclamation and Enforcement more times than we can count. On top of that, our supporters have sent tens of thousands of letters to these agencies.

ky_mine_2008

KY_mine_2010

ky_mine_2013
A series of Google Earth images of Magoffin County, Ky., shows the growth of the Right Oakley Surface Mine operated by Licking River Mining, LLC. The images are from June 2008, June 2010 and October 2013, which is the most recent date available.

So what has all of that gotten us? The administration has fallen woefully short of what we had hoped. Of all of the ways to gauge success, one simple question sits atop the list: is mountaintop removal coal mining still happening in Appalachia? Sadly, the answer is “Yes.”

I don’t want to be unfair to the people in these agencies who have worked tirelessly to limit the pollution from mountaintop removal. Indeed, they have done far more to curtail the destructive mining practice than either the Clinton or Bush administrations. While that’s a low bar, they have made significant changes, and there is less mountaintop removal mining today then there was between 2002 and 2008. Part of that is due to market forces, and part of that is due to the actions of the Obama administration. These actions, however, have not been enough.

There is only one sufficient solution to the problem of mountaintop removal, and that is total abolishment. Anything short of that is a failure. At first glance, this may sound extreme, and even unreasonable. But there is never a time when it is okay to blow up a mountain, dump the waste into valleys, and put the health of local communities at risk by filling their air and water with dangerous chemicals, heavy metals and particulate matter. There is a right and wrong way to do many things, but there is no right way to do mountaintop removal coal mining.

The Obama administration should allow the science around mountaintop removal to drive their policy making. Regrettably, they have chosen politics and public perception as their top priorities. They want people to think they are moderate and reasonable, and they are willing to sacrifice good policy in order to maintain that appearance.

When I have met with administration officials, they seem to believe they have done enough work on mountaintop removal. They have taken steps to limit the amount of mines, valley fills and overall pollution. But modest steps are not good enough for us, and they are not good enough for communities in Appalachia who continue to live with the nightmare of mountaintop removal.

Since the beginning of the administration’s first term in 2009, Appalachian Voices has advocated for them to stop issuing any permits for mountaintop removal mines. Instead of refusing all permits associated with mountaintop removal mining, they have chosen to issue permits for mines and valley fills. The Obama administration has issued fewer permits than its predecessors, but permits have been issued nevertheless.

Our next goal was for the EPA and the Army Corps to work together to change the definition of the term “fill material” in the Clean Water Act to exclude mining waste, which would eliminate the use of valley fills, and, thus, eliminate the biggest mines in Appalachia. From the first meeting we had with them, the White House has refused to change the definition of “fill material.” While we pushed at the beginning of the president’s first term, it soon became clear that they would never even consider taking action.

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Members of the Alliance for Appalachia rally outside the Environmental Protection Agency’s headquarters in Washington, D.C. in 2013. During the citizen lobby week, members of The Alliance, which is comprised of 15 organizations including Appalachian Voices, met with representatives of the EPA, Army Corps of Engineers, and Office of Surface Mining, Reclamation and Enforcement.

Right from the start, we were met with disappointment, but there still are alternative paths forward. There are several things the administration can do between now and the end of Obama’s term in January of 2017. In order to make long-lasting changes that benefit Appalachia, the EPA, OSMRE, Army Corps and DOI will all need to be involved, and it will take White House leadership to make that happen.

Since 2009, OSMRE has been developing a much-needed Stream Protection Rule. A draft is not expected to be released until the middle of 2015, so the precise contents of the rule are unknown. What we do know is that the rule will regulate surface coal mining in or near streams, and would replace an outdated 1983 rule. It has the potential to be the most important action the administration takes to curtail mountaintop removal, if they choose to include strong safeguards against mining waste polluting Appalachian streams.

Politics will of course play a big role in the final version of the Stream Protection Rule. Coal industry allies in Congress have already put enormous pressure on OSMRE and Department Director Joe Pizarchik. The U.S. House of Representatives passed a bill in spring of 2014 that would prohibit OSMRE from completing the rule-making process. While that effort has been blocked from moving forward in the Senate by Majority Leader Harry Reid (D-NV), next Congress will be different, as Sen. Mitch McConnell (R-KY), an ardent ally of the coal industry, is expected to take over as majority leader. It’s almost certain we will have a fight on our hands in the Senate at some point next year.

The administration’s next opportunity is for the EPA to create a water quality standard for conductivity. For years, the EPA has known that conductivity, a measure of the amount of dissolved solids in water, is a critical indicator of stream health. Based on the best science, mountaintop removal mining results in conductivity levels elevated beyond what is healthy for streams, and a science-based water quality standard for conductivity would result in violations for practically all mountaintop removal mines.

A rule-making can take years, and at this point the current EPA may have already blown their opportunity to do a full water quality standard for conductivity. With the knowledge that mountaintop removal mines result in unhealthy conductivity levels for nearby streams, the EPA should, at the very least, refuse to issue permits for new mines.

The EPA also has an opportunity to create a federal standard for selenium pollution. Selenium bioaccumulates within fish, birds and reptiles, where it causes serious deformities, reproductive failure and death.

Grassroots Progress Report

The agency is currently considering a new selenium standard, but their latest proposal for a standard is convoluted, unenforceable, and may take away one of our most reliable tools in fighting water pollution from mountaintop removal. Instead of relying on regulators to handle monitoring for the thousands of cases of water pollution from mountaintop removal — a task they have repeatedly proven incapable of doing — citizens need to be able to monitor water in their own communities. Together with community members, we have been able to do that monitoring, but rules that make such monitoring more difficult are a huge step backward. EPA needs to implement a protective selenium standard that is enforceable by citizens and regulators alike.

The coal industry will continue doing everything in their power to prevent strong conductivity and selenium standards. Most industry resistance has been in the courts, but in several congressional hearings over the past few years, members of Congress have spewed coal company talking points in an attempt to put political pressure on the administration. The industry and their allies in Congress will continue to push back against effective safeguards. They will use every dollar and every trick they have to maintain their grip on the region. And they will do everything they can to hold off the day Appalachia can move past mountaintop removal.

It’s true, the Obama administration has taken steps to limit the pollution from mountaintop removal. But mountaintop removal coal mining is still happening, and that is unacceptable. If the White House fully commits over the next two years, they can make huge changes that will benefit Appalachia for generations. If they continue to take half measures, however, it will be an enormous opportunity lost.

Coal ash cleanup still contested in North Carolina

Friday, December 5th, 2014 - posted by Sarah Kellogg
 Controversies still surround the environmentally destructive and costly Dan River coal ash spill. Now, as Duke Energy begins cleaning up the most high priority sites, new controversies are emerging. Photo from Duke Energy Flickr.

Controversies still surround the environmentally destructive and costly Dan River coal ash spill. Now, as Duke Energy begins cleaning up the most high priority sites, new controversies are emerging. Photo from Duke Energy Flickr.

In two weeks, the U.S. Environmental Protection Agency will finally release the first-ever rule regulating the storage and disposal of coal ash, a toxic byproduct of burning coal. For years, communities and environmental groups across the country have pushed the EPA to finalize the regulations, and now, due to a court ordered mandate, the rules are expected to be released on Dec. 19.

In the years following the 2008 TVA coal ash spill in Kingston, Tenn., the EPA repeatedly delayed finalizing a coal ash rule, allowing the dangerous waste to sit in unlined landfills and contaminate groundwater at sites across the country. As a result, there have been more coal ash disasters, including the February 2014 spill into the Dan River at Duke Energy’s plant in Eden, N.C. A new study conducted by Wake Forest University research biologist Dennis Lemly puts the cost of the Dan River spill at $300 million.

Spurred by the devastating Dan River spill, enormous public outcry, and a federal criminal investigation into the ties between Duke Energy and the N.C. Department of Environment and Natural Resources, state lawmakers set about writing their own coal ash regulations prior to the EPA rule’s release. The result was not what North Carolinians hoped for.

The Coal Ash Management Act, which became law in September without Gov. Pat McCrory’s signature, only requires the full cleanup of four out of the 14 coal ash storage sites in the state. The fates of the remaining 10, including Belews Creek (home to the the largest coal ash deposits in the state) have been left in the hands of a Coal Ash Commission, which may allow sites to be capped in place, a method of coal ash storage that does not eliminate the possibility of groundwater contamination.

McCrory did not sign the bill because he felt that the Coal Ash Commission was unconstitutional since a majority of its members were appointed by legislators and not the governor. On Nov. 13, McCrory and former governors James Hunt and James Martin sued the General Assembly, stating that the commission has been tasked with carrying out executive branch functions, as well as functions normally overseen by state agencies such as DENR. Speaker of the House Thom Tillis and Senate President Pro Tempore Phil Berger, who are listed as defendants in the case, issued a statement opposing McCrory’s lawsuit as costly and time-consuming.

Despite the weaknesses of the Coal Ash Management Act, the law has already forced Duke Energy to begin cleaning up the coal ash at four high-priority sites, and to submit preliminary cleanup plans and groundwater assessment plans for the remaining 10. But now new controversies are emerging over where the company plans to relocate its waste.

Last month, Duke announced plans to move 2.9 million tons of ash from its Riverbend and Sutton plants to former clay mines in Chatham County and Lee County. Citizens in both counties are upset by the proposal, stating that they feel blindsided and citing the lack of an environmental or health impact study as problematic. In Chatham County, some residents already live near coal ash ponds located at Duke’s Cape Fear plant, which are not currently designated for cleanup.

Duke Energy contends that the clay mines are ideal for coal ash storage because of their close proximity to railways and the added environmental protection of impervious clay. The company says it will put in liners and install groundwater monitoring systems at the sites.

Under the Coal Ash Management Act, millions of tons of coal ash precariously stored along North Carolina’s waterways will have to be moved somewhere. But the unfortunate reality of the law is that many previously unburdened communities and others already burdened by toxic waste dumps may be forced to house some of the ash. Ideally, most of the coal ash will remain on Duke Energy-owned property, but what cannot safely stay on Duke’s land will have to go somewhere. Every North Carolinian has a ton of coal ash to their name, but not every North Carolinian will have to deal with their ton.

In addition to considering new landfill sites, Duke Energy is also looking into the potential of beneficial reuse of coal ash.

If the EPA’s coal ash rule is weak, it will not protect communities from potentially dangerous coal ash landfills or coal ash reuse. Though there are no ideal solutions for the toxic waste, moving forward with the understanding that the substance is indeed hazardous would lead to more safeguards for human health.

If you haven’t already, take a moment to think about why you care about coal ash pollution and explore this topic with others. As North Carolina and the rest of the country move toward coal ash cleanup, it’s more important than ever for us to stand united to demand the safest storage possible.

What will Obama’s legacy be on mountaintop removal?

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

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

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

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

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

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

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

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

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

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

Kentucky court sides with citizens and environment

Tuesday, December 2nd, 2014 - posted by eric

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Virginia utilities expand their menus with new energy-saving offerings

Monday, December 1st, 2014 - posted by hannah

Advocates for energy efficiency often, and rightly, call it “the first fuel,” and Virginia is now creeping ahead toward gains in this lowest-cost power source.

New programs could help Virginians harness the "first fuel" -- energy efficiency.

New programs could help Virginians harness the “first fuel” — energy efficiency.

As some of Virginia’s foremost energy efficiency leaders will tell you, Virginians are coming to a consensus that we need concerted energy efficiency improvements, and judging by our recent rank of 35 in a state efficiency scorecard, this sense of urgency comes not a moment too soon!

Utilities are responding with new programs that they will run over the next few years. For climate activists, affordable energy supporters and regular customers alike, these programs represent steps in the right direction.

Virginia’s largest utility, Dominion Power, serves dense population centers in the northern, eastern and central regions of the Commonwealth and already administers a handful of opt-in energy-saving programs. The intent behind these demand side programs is to invest in energy-saving home improvements in much the same way utilities invest in a generating facility, with a bonus rebate to help offset the initial cost for the energy user.

Dominion is now looking to add two new demand-reduction programs to its portfolio, with a regulatory hearing scheduled for March. One program is intended to be restricted to those who would need it most, open only to those living in poverty, the other would target some of the most woefully old, power-guzzling appliances that customers may still be plugging in (see chart). Dominion is also proposing a Qualifying Small Business Improvement Program, and the utility’s many other commercial programs are listed online.

Dominion Power's current and proposed energy efficiency programs in Virginia.

Dominion Power’s current and proposed energy efficiency programs in Virginia. Click to enlarge.

Meanwhile, Virginia’s other investor-owned utility, Appalachian Power, has announced a suite of programs it estimates will save energy equivalent to the annual usage of 3,000 homes. The company, which serves much of Virginia’s mountain, valley and piedmont residents, has just been granted approval for an air-conditioner on/off cycling option (which saves on system congestion and expensive summer-peak energy during high-use times) and a low-income weatherization program to kick-off its energy saving portfolio. The company is also seeking approval for programs that will provide for customers to save money on wealth-building measures like a home check-up and vastly cost-effective LED bulbs (again, see chart).

Descriptions of energy efficiency programs proposed by Appalachian Power Company in Virginia.

Descriptions of energy efficiency programs proposed by Appalachian Power Company in Virginia. Click to enlarge.

It’s worth pointing out that the U.S. Environmental Protection Agency’s Clean Power Plan to reduce the carbon intensity of our power sector allows states to count efficiency improvements toward reductions in overall emissions, meaning we can pursue the plan’s goals while creating jobs in the home assessment and efficiency retrofitting fields. It is the first time that the EPA has created a standard that allows for offsets in emissions from outside the walls of a power plant. We can take advantage of the EPA’s action to drive expansion of more ambitious efficiency programs.

The more we ask of our utilities in this regard the more we can expect Virginia’s rank on those national charts to climb, and the more we’ll see our neighbors finding work as home energy contractors doctoring our houses and looking after our leaky, energy-inefficient buildings.

Dominion customers can apply to and enroll in existing programs through dom.com. Stay tuned for news on APCo’s new programs which will soon be available for applications and enrollment.

We won’t stop until we’ve won in Virginia

Friday, November 21st, 2014 - posted by hannah
Virginia Sierra Club

Virginia Sierra Club

As he called the Joint Commerce and Labor Committee to order Wednesday in Richmond, state Sen. John Watkins told the the audience of more than 200 citizens that the purpose of the meeting was to allow legislators to better grasp the U.S. Environmental Protection Agency’s Clean Power Plan and its likely effects on Virginia’s economy and energy prices.

That is all well and good, but for the fact that the the slate of presenters was stacked by the likes of the industry-biased Virginia Center for Coal and Energy Research and coal-heavy electric provider Appalachian Power. Aside from a lone environmental advocate, representatives from the electric utilities and entities friendly to polluters dominated the three-hour hearing, repeating the myths and misinformation that the EPA plan would increase costs for ratepayers and trigger job losses.

But the General Assembly members could not fail to notice just how many Virginians took the time to be there to watch and listen, and how passionately they care about shifting to clean energy. A large group activists and clean energy supporters rallied outside the Capitol to make our voices heard: there is no time to lose for Virginia to harness renewable energy and energy efficiency. They cheered the EPA’s proposed carbon pollution limits as a historic opportunity to adopt the policies that will turn the commonwealth to a cleaner energy future.

Virginia Sierra Club

Virginia Sierra Club

Amid the spirited and diverse groups at the rally were moms and kids having a play-in for the earth, Green Grannies leading the crowd in song, and students who waved model wind turbines aloft in the wintry breeze. The point was clear. Rejecting the biased and flawed assessments that industry presenters made in the committee room, speakers at the rally heralded the benefits to public health and the obligation that Virginia has to be part of climate solutions. These sentiments are reflected in the more than 200,000 petition signatures from Virginians support of strong EPA climate action.

The speakers highlighted how the option to offset power plant emissions with clean sources and efficiency will drive job creation and eliminate the need for new natural gas plants, and stressed that costly nuclear power investments are not needed if Virginia can take advantage of offshore wind and ramp up programs to make homes and businesses energy-efficient. Virginia has enough wind and solar energy to power hundreds of thousands of homes in the next decade — IF the legislature and McAuliffe administration act now and incorporate EPA’s Clean Power Plan as part of a statewide strategy.

Virginia Sierra Club

Virginia Sierra Club

Wednesday’s events brought Virginia activists together around a shared vision of Virginia 15 years in the future that is less reliant on fossil fuels, a vision that the EPA plan can help bring to life. Others voiced concern at the rally that the two large natural gas pipelines proposed for Virginia are not the way to go, given the dangers to clean air and water and the impacts of carbon dioxide and methane on the climate.

Our movement spanning Virginia is strong in its diversity and united by a desire for a clean energy future. Until the EPA’s rule is made final in June of 2015 and far beyond it, we’re fighting for clean power. As we chanted Wednesday at the Capitol, “There’s no stopping us until we’ve won.”

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