Posts Tagged ‘EPA’

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.

Criminal charges filed against Duke Energy

Friday, February 20th, 2015 - posted by brian
Duke Energy entered a plea agreement with federal prosecutors to resolve a federal criminal investigation into its handling of coal ash in North Carolina.

Duke Energy entered a proposed plea agreement with prosecutors to resolve federal criminal charges related to its handling of coal ash in North Carolina.

The U.S. Department of Justice has filed criminal charges against Duke Energy for violating the federal Clean Water Act at coal ash sites across North Carolina. The company announced today it has reached a proposed plea agreement with federal prosecutors to resolve the charges.

According to a Duke Energy press release, the plea agreement includes $68.2 million in fines and restitution and $34 million for community service and mitigation.

The charges include multiple misdemeanor violations of the Clean Water Act in connection with last year’s coal ash spill in the Dan River as well as unauthorized discharges at other Duke coal plants in North Carolina. The agreement is subject to review and approval by the U.S. District Court for the Eastern District of North Carolina.

Related stories

Coal Ash Management: Long-awaited, still debatedAppalachian Voice reporter Kimber Ray sums up the state of coal ash management at the federal and state levels.

The agreement does not affect state lawsuits against Duke Energy, in which Appalachian Voices and our partners have intervened. It’s unclear whether the grand jury has finished its work, only finding Duke in the wrong, or if an investigation into actions of the N.C. Department of Environment and Natural Resources is ongoing.

The federal grand jury investigation began last year after 39,000 tons of coal ash spilled from a retired Duke Energy coal plant into the Dan River.

A statement from Amy Adams, North Carolina Campaign Coordinator for Appalachian Voices, and former supervisor with the Department of Environment and Natural Resources:

It’s good to see that federal enforcers have taken this issue seriously by diligently pursuing criminal charges and levying a substantial fine against Duke, and it’s good to see Duke acknowledge its culpability. However, we have yet to see that culpability turn into real action. There are still leaking coal ash ponds at 10 of Duke’s sites, leaving 10 communities in limbo and a lot of ash that must be permanently and safely disposed.

Important questions remain, like exactly how the money will be spent and whether any individuals will be named. But most troubling is the unanswered question of whether DENR was aware of negligence and failed to act, or was unable to recognize the magnitude of the situation in the first place.

Learn more about our work to clean up coal ash pollution. Subscribe to the Front Porch Blog to receive regular updates. 

EPA Cannot Regulate Lead in Ammunition

Tuesday, February 17th, 2015 - posted by Dac Collins

By Chris Robey

A recent federal court ruling determined that the U.S. Environmental Protection Agency cannot regulate use of lead ammunition, which raises concerns over the effects of spent ammunition on raptors and other wildlife — especially as bald eagles rebound from dwindling populations during the 1960s.

The decision closely follows a government spending bill that blocks the EPA from regulating lead in shot and fishing tackle.

The well-documented link between spent ammunition and lead poisoning in wildlife spurred the U.S. Fish and Wildlife Service to ban lead buckshot for waterfowl hunting in 1991, but lead is still permitted for other types of hunting. Raptors, like waterbirds, are especially vulnerable to lead in the environment; exposure occurs when they eat contaminated fish and carrion or directly consume bullet fragments.

Some experts believe that promoting non-lead alternatives, such as copper bullets, would be more effective than prohibition. Many hunters, however, remain skeptical of these alternatives.

Danger still looms over the Dan River

Monday, February 9th, 2015 - posted by amy

{ Editor’s Note } This post by Amy Adams also appeared as an op-ed in the Winston-Salem Journal on Sunday, Feb. 1, marking the first anniversary of the Dan River coal ash spill.

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It’s been exactly one year since the infamous broken pipe at Duke Energy’s Dan River steam station spewed 39,000 tons of toxic coal ash into the scenic Dan River, just a few miles upstream of the drinking water intake of some 160,000 people. Since then, much attention has been given to the river and to the problems of leaking, unlined coal ash pits across North Carolina.

What hasn’t received attention is a threat much more menacing to the Dan River. Sitting only 35 miles upstream from the shuttered Dan River plant is Duke’s Belews Creek steam station in Walnut Cove, and one of the largest coal ash impoundments in North Carolina and the entire Southeast. Compare the 342-acre active goliath at Belews to the 39-acre impoundment at the Dan River plant, and it’s easy to understand the implications.

At Belews, a 14-story high earthen dam holds back 4.1 billion gallons of toxic coal ash. That’s more than 20 times the holding capacity of the Dan River site. The dam at Belews is rated by the U.S. Environmental Protection Agency as “high hazard,” meaning loss of life and property are probable if it failed. The EPA also ranks the dam as being in only fair condition. If it were to break, the Dan River would again be flooded with toxic coal ash, only this time on a scale on par with the Kingston, Tenn., disaster in 2008.

Aside from the threat of a catastrophic spill, the Belews Creek plant has a history of pollution that harms waterways and wildlife, including documented groundwater contamination. In addition, the plant dumps its wastewater directly into the Dan River under state-issued permits. It is currently part of ongoing litigation for violations of the Clean Water Act, its wastewater permit and North Carolina law.

Downstream from the massive Belews Creek plant is the town of Madison, which gets its drinking water from the Dan River, as does Eden and the Virginia localities of Danville, South Boston and Halifax County. Eden, whose water intake was spared any impacts from last year’s spill, withdraws close to 12 million gallons a day from the Dan River to serve residential customers and three major industries: Miller Brewing, Hanesbrands and Karastan Rug Mills.

Living next to this industrial mega-site are residents of Walnut Cove and Pine Hall, communities whose concerns include not just the wet ash impoundment and dangerous dam, but several other on-site landfills containing dried coal ash. While the N.C. Department of Environment and Natural Resources has spent the last weeks rearranging the who’s who of its upper management, these communities, like others across the state, are waiting to find out if the agency will ever clean up the sites.

According to the state’s new coal ash law, passed earlier this year under mounting pressure from citizens, DENR must set the “priority level” of each site by the end of 2015. So far, four sites have been identified as high priority — but not Belews Creek. If it’s ultimately deemed to be a “low priority” site, the ash could be left in the existing unlined pit in the ground and simply covered with plastic. This is not an acceptable solution for the residents around the plant who depend exclusively on wells for their drinking water.

Covering the ash does nothing to stop the toxic metals from entering the groundwater beneath the unlined pit. It’s equivalent to trying to stay dry under an umbrella while sitting in a puddle.

The communities living under the shadow of Belews deserve to be more than a low priority. In fact, no community in North Carolina should be considered a low priority. On the anniversary of the Dan River spill, we should make the removal of coal ash from all unlined coal ash sites and therefore, the assurance of clean, safe water to our communities, our top priority.

Survey says: Virginians want clean energy

Tuesday, February 3rd, 2015 - posted by cat
While legislators in Richmond bow to Dominion, voters increasingly demand a clean energy economy.

While legislators in Richmond bow to Dominion, voters increasingly demand a clean energy economy.

An overwhelming majority of Virginians say they want the state to develop a plan that reduces carbon pollution and increases cleaner sources of energy that will help create jobs and boost the economy, according to a poll released today.

It’s good news, and it confirms what we hear almost every day in our conversations with citizens of the commonwealth. It also aligns with a growing body of public opinion research ­— Americans increasingly understand that carbon pollution harms our health and environment and is causing global warming. They also get that shifting to clean energy sources will yield not only environmental protection, but also tremendous economic benefits.

Today’s poll was conducted jointly by two national firms — one Democratic and one Republican — for the Natural Resources Defense Council. Four hundred Virginia voters were surveyed during the second week of January, just as the General Assembly was mired in a slew of industry-backed bills that would thwart efforts to move Virginia toward cleaner energy. (It never ceases to amaze how tone-deaf legislators can be when it comes to the vox populi on environmental issues.)

A few more highlights from the poll, but it’s worth taking a look at the summary:

64% of Virginians support the U.S. Environmental Protection Agency’s “Clean Power Plan” to reduce carbon pollution from existing power plants.
83% want Virginia in the driver’s seat in developing ways to meet EPA’s goals. Support in the Roanoke/Lynchburg area (the western-most area that was polled) is 79%.
95% of all Virginians support increased energy efficiency to meet our future needs.
88% support boosting the state’s use of renewable power, including wind and solar.
Hannah Wiegard, our Virginia Campaign Coordinator, is in Richmond today, joining our allies to ensure that our elected officials see these results as they consider key legislation.

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.

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KY_mine_2010

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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.