Posts Tagged ‘EPA’

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

Be cool and keep fighting

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Coal ash rule reaches White House for final review

Wednesday, October 29th, 2014 - posted by brian
After four years of hand wringing, the first-ever rule to regulate coal ash has reached the final stage of review.

After years of hand-wringing, the first-ever rule to regulate coal ash has reached the final stage of review.

On Monday night, the U.S. Environmental Protection Agency sent a long-awaited rule to regulate the disposal and storage of coal ash to the White House Office of Management and Budget for final review.

“We are pleased to see the draft rule move into the final phase of review needed for its release in December,” says Amy Adams, Appalachian Voices’ North Carolina campaign coordinator.

“Having experienced the consequences of poor enforcement and weak or non-existent state regulations, North Carolina serves as a clear example of why states must have federal baseline standards for coal ash,” Adams says. “We must place our hope in the strength of the EPA rules and the resolve of the federal government to protect citizens from this toxic waste.”

Observers say the administration should have enough time to finalize the rule by the EPA’s court-ordered deadline of Dec. 19, which the agency apparently “fully expects” to meet.

Until then, however, we won’t know much about how far the rule will go to protect communities across the United States from coal ash pollution.

Infographic: The Truth About Coal Ash

At least for the next several weeks, the substance of the rule is still subject to change and there are a few different ways it could go. Environmental groups have for years pressured the EPA to regulate coal ash as the dangerous substance that it is. This option would classify coal ash as a hazardous waste under Subtitle C of the Resource Conservation & Recovery Act. Utilities and other industries hope the rule will regulate coal ash under Subtitle D of RCRA, which emphasizes state oversight and enforcement through citizen lawsuits.

In both scenarios, the EPA says it won’t regulate the use of coal ash in concrete and other construction material, or as fill material — the latter will fall under the Office of Surface Mining Reclamation and Enforcement’s upcoming Mine Fill Rule. Beyond that, the description of the rule on OMB’s website offers little insight, which may be just how the White House wants it.

As Earthjustice’s Lisa Evans points out, the OMB review process is “a black box — opaque, inscrutable and exceedingly dangerous. Rules never come out the way they go in — the offices of OMB are littered with crumpled pages of strong rules gone soft after revision by the White House.”

Evans uses an example from 2009, when former EPA Administrator Lisa Jackson sent the White House a plan to regulate coal ash as a hazardous waste following the largest coal ash spill in U.S. history.

Timeline: Five years after the TVA coal ash disaster, what do we have to show for it?

The EPA received more than 400,000 comments on the rule, and thousands attended public hearings to support stronger protections. But heavy lobbying by the coal and utility industries ultimately weakened the administration’s resolve.

Since then, the EPA hasn’t exactly been forthcoming about the status of the rule. In fact, had it not been for a lawsuit brought against the EPA by Earthjustice on behalf of Appalachian Voices and other environmental and public health groups last year, the timeline for a final rule might still be murky.

While unavoidable, Evans says the OMB review “introduces uncertainty at the end of a rulemaking process that must, by law, be based on science and transparency and governed by the requirements of the enabling statute.”

The evidence that coal ash poses significant risks to human health is abundant, and the need to do more could hardly be more urgent. The White House should listen to the thousands of citizens demanding strong protections against coal ash pollution.

Learn more about Appalachian Voices’ work to clean up coal ash.

A Washington Post editorial on mountaintop removal’s dirty consequences

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

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

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

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

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

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

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

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

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

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

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

One Artist’s Experience with Coal Ash

Monday, October 13th, 2014 - posted by Barbara Musumarra

By Caroline Armijo

Editor’s Note: Caroline Armijo began an environmental justice art project after seeing many friends and family die from cancer in her North Carolina community, near one of the state’s largest coal ash impoundments. The Belews Creek coal ash ponds near her community are not among those designated for full cleanup by the recent state coal ash bill. In this excerpt from Armijo’s website, she describes the circumstances that shaped her paper sculpture creation, titled “Gray Matter.” Read the full post at carolinearmijo.com.

In my five years in Washington D.C., I have only known three people with cancer, and only one of those have died. In the last six months alone, I have known five people who have died from my hometown in Stokes County, North Carolina.

[In 2007 the EPA reported that] coal ash gives you a one in fifty chance of getting cancer. Unfortunately, the statistics seem to be much worse at home than estimated in the published reports. When I discussed this with a friend from home, she said that her prayer group included two people with cancer out of four.

Photo by Caroline Armijo

Rolls of collected grave rubbings bound by red stitching give structure to this hollowed-out book. The rubbings were created from the headstones of mixed-media artist Caroline Armijo’s friends and family members, whom she suspects were poisoned by coal ash. Photo by Caroline Armijo.

Maybe I feel so strongly about this after watching my dad’s twin sister, Cheryl, fight a courageous battle against non-Hodgkin’s lymphoma. She passed away in April 2006, after I moved to D.C. the previous year. I was six hours away from my family. It was one of the hardest things I have ever dealt with.

A couple of years later, her neighbor Jackie, from directly across the street, died of the exact same kind of cancer. They could see each other’s houses from their front windows. Cancer is not contagious. What are the chances of that happening?

I did what I do when I don’t know what else to do. I began working on an art project that ultimately became Gray Matter. I had partially excavated/destroyed the book, Your God Is Too Small, a couple of years ago; it was in two pieces and looked like a couple of capital D’s. I went to the studio, picked up the book, gathered my scalpel (a real surgeon’s knife) and blades, and headed home with all of these lost loved ones in my mind.

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

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

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

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

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

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

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

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

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

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

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

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

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

To tell the truth

Friday, August 22nd, 2014 - posted by tom
AV's Director of Programs Matt Wasson testifies before Congress

Appalachian Voice’s Director of Programs Matt Wasson testifies before Congress about the burden of mountaintop removal coal mining on Appalachian communities

Last month, our Director of Programs Matt Wasson got the chance to tell a rapt audience in Washington, D.C., that the emperor has no clothes. The audience was the U.S. House Energy and Commerce subcommittee on Environment and the Economy, the reporters in the room, and anyone who happened to be watching on CSPAN.

The majority members of the committee had called the hearing in an attempt to portray federal environmental protections as overly burdensome and to trumpet state efforts to “streamline” them. As Matt described in his testimony, however, the facts for the people living in the Appalachian counties most heavily impacted by mountaintop removal coal mining under the ostensibly watchful eye of state agencies are these:

  • They are 50% more likely to die from cancer than others in Appalachia
  • Their children are 42% more likely to be born with birth defects
  • They have a life expectancy far below the national average and comparable to those in El Salvador and Vietnam.

Rep. Henry Waxman of California, picking up on Matt’s revelations, noted the similarly atrocious handling by North Carolina officials — in the absence of any federal rules on coal ash — of the catastrophic Duke Energy coal ash spill in February. In the end, the hearing turned into an indictment of the fallacy that states can be counted on to defend their citizens against the profit-driven vagaries of the coal industry and energy giants like Duke.

And while Matt had a rare opportunity to provide a reality check in the ceremonial milieu of a congressional hearing room, it’s the people living in places like Wise County, Va., Pike County, Ky., and Stokes County, N.C. (the site of Duke’s largest coal ash pond), who know this reality better than anyone. It’s their voices, their courage and their persistence — in combination with technical experts like Matt speaking truth to power — that will ultimately bring about real change in their communities.

It’s still happening …

Friday, August 15th, 2014 - posted by thom
Click to enlarge. Photo by Lynn Willis; Flight by Southwings

Click to enlarge. Photo by Lynn Willis; Flight by Southwings

Surface coal mining has been going on in Appalachia for a long time. If you live in the part of central Appalachia that produces coal, it probably feels like it’s been going on forever. The regulations have been modified a few times, the markets have had their ups and downs, and some of the names of the coal companies are different than they used to be.

Aside from that, not much has changed.

In 2009, there was a great deal of excitement about early conversations with Obama administration officials. The previous eight years had been a nightmare for Appalachian community groups fighting against mountaintop removal coal mining. Finally, there were people in the Environmental Protection Agency and Department of Interior who seemed eager to hear from communities and make some real changes. Yet, five years later, mountaintop removal coal mining is still happening in Appalachia.

A few weeks ago, Southwings took my colleague Amy Adams and photographer Lynn Willis on a flight over mountaintop removal sites in West Virginia. The images are hard to look at, not because they show anything new, but precisely because they are more of the same. Mountains continue to be deforested, blasted apart, and dumped into nearby valleys and streams.

I always find it interesting to hear from folks in our movement describe what it was that motivated them to become active in fighting against mountaintop removal mining. There are all sort of answers, including: “It was happening in my backyard,” and “I heard a presentation from impacted Appalachian residents.” For me, it was a mix of things, starting with meeting some residents of eastern Kentucky.

This image, however, is what made it all click in my mind.
5000sq miles of WV

That’s a Google Earth satellite image of approximately 5,000 square miles of central Appalachia (roughly the size of Connecticut). Notice those grey splotches. Those pock marks. Those coal tattoos. Each of those giant marks on the earth is a mountaintop removal coal mine.

The scale and pervasiveness of the destruction is almost impossible to comprehend. The satellite image is evidence of an ongoing crime against nature that regulators and policy makers are astonishingly allowing to continue.

Understanding the extent of the mining is an important step to understanding the connection between mining pollution and the Appalachian health crisis occurring across 50 counties. Blowing up more than 500 mountains, burying more than 2,000 miles of streams, and desecrating over 1 million acres of land cannot be done without polluting the air and water necessary to human health. That’s why there’s a close link between mountaintop removal mining and elevated rates of cancer, heart disease, respiratory illnesses, and birth defects throughout the entire region.

Yet, mountaintop removal is still happening.

Appalachians are not going to give up, and neither is Appalachian Voices. Federal agencies can still take major steps to ending mountaintop removal, and we all need to do what we can to make sure they do.

>> Learn more about mountaintop removal mining.

Seleni-what?

Monday, August 11th, 2014 - posted by Amber Ellis

A little-known pollutant has big implications for the health of Appalachian streams

By Eric Chance, Water Quality Specialist for Appalachian Voices

Illustration by Jack Rooney

Illustration by Jack Rooney

Most people have probably never heard of selenium, but for coal operators and fish it is a big deal.

The mineral selenium occurs naturally and is necessary for life in extremely small amounts, but it is toxic to aquatic life even at very low levels. Once in the environment, selenium accumulates in birds, fish and other aquatic organisms, building up to toxic levels in their tissues. It is especially harmful to fish, causing reproductive failure, deformities and even death.

In 2012, Patriot Coal Corp. agreed to phase out its use of mountaintop removal coal mining in order to resolve $400 million in liability for selenium pollution cleanup. Many coal mines and coal ash ponds release selenium, but it is difficult and expensive for companies to remedy the problem because even small amounts can be hazardous.

A brief, high discharge of selenium into a stream might not be that toxic at first. Yet over time selenium deposits in the stream’s soils can be absorbed through an organism’s diet and build up to toxic levels in insects and fish.

Duke Energy’s Dan River coal ash spill this past February is a good example. Although selenium concentrations in water downstream from the spill were relatively low, the selenium in the coal ash that coated the bottom of the river for dozens of miles poses a long-term hazard for fish and other aquatic life.

Selenium is expensive to remove from water, and its effects on the environment are complicated. This makes water quality standards for selenium a prime target for attacks from industries who wish to avoid water treatment costs and regulators who are easily bogged down in complicated science.

There have been quite a few strikes on selenium regulations in recent years, and many of them have focused on changing the basis of water quality standards for the mineral from the amount of selenium in the water to the amount found in fish tissue. Once adopted by individual states, water quality standards are used to determine which streams are impaired and to determine the amount of pollution allowed in permits. Every state with mountaintop removal coal mining has made some attempt to change its selenium standards in recent years, and the U.S. Environmental Protection Agency has tried several times to change the national standards.

A fish tissue-based standard seems to make sense from a purely scientific perspective, since selenium accumulates in fish over time. Yet these standards add complexity and costs to already underfunded and overworked environmental agencies. The changes also make it much harder for citizens to enforce these standards under the Clean Water Act because of the increased cost and difficulty of collecting fish for testing.

Collecting fish creates its own set of problems. Extremely polluted streams might not have any fish at all, or the only fish surviving might be less-sensitive species that accumulate selenium levels in their bodies at a slower rate. Repeatedly gathering fish from streams with selenium problems could also further stress those fish populations. Collecting fish for scientific purposes requires special equipment such as an electro-shocker and special permits that may not always be available. The process is also more time-consuming than collecting water samples. And even when specimens are collected, it is impossible to know how long a certain fish has been near a particular pollution discharge point.

Late in 2013, Kentucky proposed, and EPA approved, weaker state selenium standards that rely on fish-tissue testing. Appalachian Voices, along with a number of partner organizations including the Sierra Club, Kentuckians For The Commonwealth, Kentucky Waterways Alliance, Defenders of Wildlife, and the Center for Biological Diversity — represented by Appalachian Mountain Advocates — has filed a lawsuit challenging these changes.

The groups argue that the new standards are too weak to serve their intended purpose, and that the rules violate the Endangered Species Act because the EPA failed to consult the U.S. Fish and Wildlife Service as required by law. Fish and Wildlife has serious concerns about the new rule and stated in a letter to the EPA that the Kentucky standards “may result in negative impacts to federally listed species.”

In May, the EPA released a draft of a new national water quality standard for selenium. The agency has proposed to replace the single standard for long term toxicity of five parts per billion in water with a complex set of five different numbers and one formula.

EPA’s newly proposed standard is actually slightly weaker than the version the agency proposed back in 2002. The new draft standard includes an 8.1 parts per million criteria for whole fish, compared to the slightly stronger 2002 proposed standard of 7.9 parts per million. Among the many scientists and agencies that criticized the 2002 proposal, the Fish and Wildlife Service told the EPA that “Based on a large body of scientific evidence, the service believes these criterion values will not protect federally listed fish and wildlife species. Furthermore, the service believes these values are not even sufficient to protect the aquatic life for which the criteria were developed.”

In 2009, Tennessee legislators tried and failed to weaken that state’s selenium standards to those that the EPA previously abandoned in 2002. As a leading expert on selenium, Wake Forest University associate professor and U.S. Forest Service biologist Dr. Dennis Lemly told Tennessee lawmakers, “Based on the work I’ve done, 7.9 would kill a lot of fish.”

The federal environmental agency’s newly proposed selenium standards still face a peer review process and public comment period before they can be finalized.

Prevailing Politics Influence State Reactions to EPA Carbon Rule

Sunday, August 10th, 2014 - posted by Amber Ellis

By Brian Sewell

Flexibility: it’s the foundation of the U.S. Environmental Protection Agency’s plan to reduce carbon pollution from existing power plants.

“That’s what makes it ambitious, but achievable,” EPA Administrator Gina McCarthy said when she unveiled the plan on June 2. “The glue that holds this plan together, and the key to making it work, is that each state’s goal is tailored to its own circumstances, and states have the flexibility to reach their goal in whatever way works best for them.”

But the politics surrounding federal climate action also vary widely among states. Two months after the plan’s release, some states are optimistic, touting how much carbon they have cut in recent years as a good start. Others are positioning themselves for a fight.

Changing Political Climates

With Democratic Gov. Terry McAuliffe in office, Virginia could be the most amenable state in the region to the EPA’s efforts. Gov. McAuliffe announced his support for regulating carbon emissions late in his campaign and recently reinstated a 35-member state commission on climate change made up of elected officials, industry representatives, environmental advocates and scientists.

In North Carolina, Republican Gov. Pat McCrory’s on-the-record comments about climate change are scant. He has claimed at various times that “there has always been climate change,” or that it is “out of our control.” But if actions speak louder than words, the McCrory administration’s approach is telling.

This year, the N.C. Department of Environment and Natural Resources removed documents about climate change from its website, including the state’s Climate Action Plan, which took dozens of experts years to research and compose.

Gov. McCrory also recently joined eight other Republican governors in penning a letter to President Obama that claims the EPA’s carbon rules would “largely dictate” the type of electric-generating facilities states could build and operate, and criticizes the president for seeking to “essentially ban coal from the U.S. energy mix.” Rather than suggesting improvements, the governors demand that the regulations be thrown out altogether.

Other Republican governors including Tennessee Gov. Bill Haslam were absent from that letter. While the Tennessee legislature is far from active on climate change, major cities in the state such as Nashville and Chattanooga have released their own climate action plans. And the Tennessee Valley Authority, the federally owned utility that powers Tennessee and portions of six other states, expects its emissions to be half of what they were at their peak in 1995 by 2020, according to a statement released the day the EPA’s plan was announced.

In West Virginia and Kentucky, the second and third largest coal-producing states in the country, regulations that could negatively affect the coal industry elicitw particularly intense backlash. The two states recently joined a lawsuit against the EPA brought by coal CEO Bob Murray, who says the agency is lying to the American people about the existence of climate change.

The states claim that what the EPA is attempting “is nothing short of extraordinary” and that the agency wants to impose “double regulations” on coal plants since harmful pollutants other than greenhouse gases are already regulated under another section of the Clean Air Act. But the courts have repeatedly ruled that the EPA has the authority and obligation to regulate carbon pollution.

Earlier this year, Virginia passed legislation to require a cost-benefit analysis of regulating carbon dioxide. And West Virginia and Kentucky made laws directing state agencies to develop alternative standards and compliance schedules.

Regardless of how outspoken they are, state leaders opposing the EPA may be out of step with voters. According to a June poll conducted by the Wall Street Journal and NBC News, 67 percent of Americans either strongly or somewhat support the EPA’s plan and 29 percent oppose it.

The EPA is expected to finalize the rule by June 2015 and states must submit their implementation plans by June 2016.