Posts Tagged ‘Mountaintop Removal’

Nothing to see here

Friday, December 5th, 2014 - posted by eric
The Kentucky Energy and Environment Cabinet's attempts to rebuke critics can't make up for its failure to notice blatant Clean Water Act violations or prosecute coal company misdeeds.

The Kentucky Energy and Environment Cabinet’s attempts to rebuke critics can’t make up for its failure to notice blatant Clean Water Act violations or prosecute coal company misdeeds.

Kentucky’s environmental regulators can’t have it both ways. On one hand, the Kentucky Energy and Environment Cabinet claims it does not have enough funding to do its job. On the other hand, it says it’s doing its job just fine.

Long-standing failures of the cabinet, which regulates coal mines and other polluters, have become even more evident in light of new legal action brought by Appalachian Voices and our partners and a recent court ruling.

In a scathing opinion issued Nov. 24, Franklin Circuit Court Judge Phillip Shepherd rejected two settlements that the cabinet had reached with Frasure Creek Mining for submitting false water pollution reports several years ago. A week before Judge Shepherd’s rulings, we had filed a Notice of Intent to Sue Frasure Creek for again submitting false reports in 2013 and 2014 that again went unnoticed by the cabinet.

Not Just a Matter of Money

For years, despite clear and persistent evidence of problems, the cabinet repeatedly claimed to be fulfilling its duties under the Clean Water Act. But it was ignoring the underlying problems, including potentially illegal water pollution discharges masked by false reporting.

In response to our recent notice that Frasure Creek has perpetrated some 28,000 new violations of the Clean Water Act, the cabinet issued a press release that essentially claimed it has everything under control. The cabinet says it’s focusing on “violations as submitted” on water monitoring reports, ignoring the fact that those reports are false or could even be fraud. The release goes on to defend the cabinet’s settlements with Frasure Creek — the ones later thrown out by Judge Shepherd — and said the cabinet had been looking into Frasure Creek’s more recent violations:

The Division of Enforcement within the Cabinet has been monitoring compliance with the April 13, 2013 Agreed Order with Frasure Creek and initiated an internal compliance review in January 2014 that has identified violations as submitted on DMRs [Discharge Monitoring Reports] to the agency. Administrative action on those violations is ongoing and is pending within the agency.

Seeking to understand the validity of these claims, our lawyers submitted a formal request for the information on the cabinet’s “internal compliance review.”

In a bold showing of its own incompetence, the cabinet asked us to clarify what we meant by “[v]iolations ‘mentioned in’ the press release.” It appeared that they did not even know what they were referring to in their own press release.

Once we clarified our request, we received this convoluted response:

The phrase ‘internal compliance review’ that was used in the November 17, 2014 press release is a term used to describe the primary function of staff in the Compliance and Operations Branch of the Division of Enforcement (DENF)…. The phrase does not encompass a specific period of time with dates certain for beginning and ending the compliance process, but it is used within DENF to refer to any ongoing review. With respect to Frasure Creek, our compliance review is ongoing and underway at this time, but it has not progressed to the point where NOVs [Notices Of Violation] have been issued or referrals for enforcement action have been generated.

In plain English, the cabinet’s response essentially says it has been looking at Frasure Creek’s violations, but officials either haven’t written anything down about them yet or, if they have written anything down, they refuse to disclose it. So, just like past claims that the cabinet is doing its job, this response is empty.

The fact that the agency is strapped for cash has never been in question — even Judge Shepherd agrees. As he stated in his recent ruling:

Commissioner Scott further testified that the cabinet has been subjected to a series of major budget cuts during the last 10 years that have drastically and adversely affected the ability of the cabinet to do its job in implementing the Clean Water Act.

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

But it’s not a lack of funding keeping the cabinet from effectively enforcing laws as much as a lack of will.

You would think that if the cabinet truly were intent on protecting the environment, they would have punished Frasure Creek to make an example of the company, rather than wasting taxpayer dollars trying to prevent citizen involvement in this case. You would also think that the cabinet wouldn’t spend its limited resources on unsuccessful legal challenges to the Environmental Protection Agency’s guidance on conductivity pollution from coal mines, or weakening water quality standards for selenium, a common coal mining pollutant.

Brown water at a Frasure Creek Mine. This is one of the discharge points that the company submitted false data for.

Brown water at a Frasure Creek Mine. This is one of the discharge points that the company submitted false data for.

The cabinet serves at the pleasure of Gov. Steve Beshear, whose strong pro-coal attitude is without doubt. In one State of the State address, Beshear went so far as to say, “Washington bureaucrats continue to try to impose arbitrary and unreasonable regulations on the mining of coal. And to them I say, ‘Get off our backs!’”

When elected officials are beholden to a single industry, as many are in Central Appalachia, it’s no surprise that regulators would be easy on that industry. But the level of corporate influence in Kentucky is out of control. Coal companies should not be able to flout the law without fear of serious prosecution. And whether the bosses like it or not, the cabinet still has the legal duty to uphold the Clean Water Act.

Could Criminal Charges Be in Store for Frasure Creek?

The cabinet and other Kentucky officials have generally ignored or dismissed the possibility that the false reporting was intentional fraud. But recent cases of laboratory fraud in West Virginia make criminal prosecution seem more feasible. One case involved discharges from coal mines where a lab employee was collecting water samples from a “honey hole,” a spot known to have good water quality, rather than from the actual pollution discharges. In another, a contract employee was reusing data from previous water monitoring reports because they had failed to pay their laboratory.

In a statement that indicates a criminal investigation should ensue, Judge Shepherd wrote:

The conditions observed by the cabinet’s inspectors during the performance audit of Frasure Creeks’ so-called “laboratory” demonstrated either a plan or scheme to submit fraudulent information in the DMRs or incompetence so staggering as to defy belief.

Kentucky Attorney General and gubernatorial hopeful Jack Conway has vowed to look into the new Frasure Creek violations. But several years ago, his team looked into the previous violations and told reporter Ronnie Ellis that they couldn’t find anything “that rises to the level of intent or criminal fraud that’s ready to be prosecuted.”

The cabinet’s dismissive attitude toward the seriousness of environmental problems in Kentucky is unsurprising given the state’s political climate, not to mention the fact that the Frasure Creek cases expose the agency’s utter incompetence. But the jig is up. It’s time for the cabinet to either start doing its job or step aside and let the EPA do it instead.

What will Obama’s legacy be on mountaintop removal?

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

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

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

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

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

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

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

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

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

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

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.

Environmental agency asleep at the switch?

Friday, November 21st, 2014 - posted by tom
Water flowing from one of the discharge points in Floyd County, Ky., that Frasure Creek Mining was turning in false water monitoring reports about.

Water flowing from one of the discharge points in Floyd County, Ky., that Frasure Creek Mining was turning in false water monitoring reports about.

At first, I couldn’t believe what our Appalachian Water Watch team had discovered earlier this year: almost 28,000 violations of the Clean Water Act by a single company in the coal counties of eastern Kentucky. It appeared to be the most extensive incident of non-compliance in the law’s 42-year history.

Frasure Creek Mining had duplicated or otherwise falsified hundreds of the water pollution reports it’s required to send to the state. Equally impressive is the fact that, over the course of a full year and a half, state regulators apparently failed to notice.

It’s shocking – but alas, not a surprise. This level of callous disregard for the laws meant to protect our health, safety, and natural heritage is all too common among Appalachia’s coal companies, regulators and often politicians. Here’s a short list.

  • An employee of a major W.Va.-certified lab pled guilty in October to faking water quality samples for coal companies — not just a few times, but for six years.
  • Last week, Tennessee fined three companies owned by Jim Justice $1.36 million for failing to submit pollution reports at 25 coal facilities, all of which had been warned twice. The companies appealed the fines, as is the MO for Justice-owned companies.
  • Don Blankenship, CEO of Massey Energy when 29 miners died in 2010 at the company’s Upper Big Branch mine in W. Va., was indicted in November on four criminal counts for conspiring to willfully violate safety rules, conceal violations, and then lying about it.
  • According to a recent investigation by National Public Radio, 9 out of 10 coal mining companies with the highest unpaid fines for safety violations are in Appalachia, ranging from $1 million to almost $4.5 million, with a total of 9,839 violations.

Back to Frasure Creek Mining, this wasn’t the first time we’d caught the company falsifying pollution records and found the state apparently asleep at the switch. In 2010, Appalachian Voices discovered 9,000 violations over a two-year period. We and our allies in Kentucky took legal action to compel the state to enforce the law, and the company to comply.

The pattern is clear. Coal companies continue to benefit from a widespread failure to enforce the law that is devastating the land and water and communities’ health. The toll on the citizens and communities of Appalachia is equally clear –- higher than average rates of cancer and birth defects, persistent poverty, poisoned streams, and a deep-rooted sense of place rocked by the blasts of explosives that flatten mountain after mountain.

With this in mind, Appalachian Voices and our partners served Frasure Creek Mining on November 17 with a notice of our intent to sue for the recent spate of Clean Water Act violations. The fight for justice continues.

For the waters,
Tom

PS: See this excellent article from the New York Times.

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

Citizen Groups Take Legal Action Against Kentucky Coal Company for Falsifying Water Pollution Reports

Monday, November 17th, 2014 - posted by cat

State regulators ignore clean water protections and enforcement

CONTACTS

Erin Savage, Appalachian Voices, 828-262-1500, erin@appvoices.org
Ted Withrow, Kentuckians For The Commonwealth, 606-784-6885 (h) or 606-782-0998 (c), tfwithrow@windstream.net
Pat Banks, Kentucky Riverkeeper, 859-200-7442, kyriverkeeper@eku.edu
Pete Harrison, Waterkeeper Alliance, 828-582-0422, pharrison@waterkeeper.org

Eastern Kentucky – Over the course of 2013 and 2014, Frasure Creek Mining – one of the largest coal mining companies in Kentucky – sent the state false pollution reports containing almost 28,000 violations of federal law, and the Kentucky Energy and the Environment Cabinet failed to detect the falsifications, according to a letter of notification served to the company by four citizen groups. It was the second time the groups have taken legal action against Frasure Creek for similar violations.

In a 30-page notice of intent to sue mailed Friday, the groups document that Frasure Creek duplicated results from one water pollution monitoring report to the next, misleading government officials and the public about the amount of water pollution the company has been discharging from its eastern Kentucky coal mines. In some cases, Frasure Creek changed only the values that would have constituted violations of pollution limits in the company’s discharge permits. With a potential fine of $37,500 per violation, the maximum penalty could be more than $1 billion.

The notice letter was sent by Appalachian Voices, Kentucky Riverkeeper, Kentuckians For The Commonwealth 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. Under the Clean Water Act, citizens must give the government 60-days notice of their intent to sue for violations. If Frasure Creek fails to correct the violations within the 60-day time period, the groups said they will file suit in federal court.

>>The notice letter can be downloaded here.

Four years ago, the groups found that Frasure Creek had sent similar falsified pollution reports, copying data from one report to the next. When the violations were brought to light, the state cabinet gave the company a minimal fine and promised reforms to ensure the agency would identify misreporting in the future. However, according to the notice served yesterday, the more recent duplications are even more extensive, and the state again failed to detect the violations or take enforcement action.

“Copy and paste is not compliance,” said Eric Chance, a water quality specialist with Appalachian Voices. “The fact that Frasure Creek continued to flout the law to this extent, even after being caught before, shows it has no regard for the people and communities they are impacting. Equally disturbing is the failure of state officials to act to stop the obvious violations. We’re not sure state officials even look at the quarterly reports.”

Frasure Creek has filed false reports or violated permit limits at more than 70 discharge points from the company’s numerous coal mines across eastern Kentucky. In the first quarter of 2014, more than 40% of the all reports filed by Frasure Creek contained data that the company had already submitted in 2013. These violations occur primarily at mines in Floyd County, but also at mines in Pike, Magoffin, Knott and Perry counties. The impacted waterways include tributaries of the Big Sandy River, Licking River and Kentucky River.

“The Clean Water Act absolutely depends on accurate reporting of pollution discharges. False reporting like this undermines the entire regulatory framework that safeguards the people and waters of Kentucky from dangerous pollution,” said Waterkeeper Alliance attorney Pete Harrison. “By all indications, this case looks like the biggest criminal conspiracy to violate the federal Clean Water Act in the history of that law. The refusal of the U.S. attorney in Lexington and the Environmental Protection Agency to bring criminal cases against Frasure Creek is just as inexcusable as the state’s failure to bring this company into compliance.”

“Once gain we find ourselves in the position of having to take action against Frasure Creek for the exact same type of violations we found four years ago. The Environmental Cabinet says they do not have the personnel to enforce the Clean Water Act. I would add they do not have the will to do so,” said Ted Withrow with Kentuckians For The Commonwealth.

When the citizen groups made those violations public four years ago, the cabinet attributed the false reporting to “transcription errors” and attempted to let Frasure Creek off the hook with minimal fines and no consequences if the violations continued. That case is still pending in Franklin Circuit Court. Though the false reporting stopped for a short time, during those months when accurate monitoring reports were submitted the pollution levels spiked.

“Frasure Creek’s false reports are hiding very serious water pollution problems,” said Kentucky Riverkeeper Pat Banks. “It’s reprehensible that our state officials are ignoring the serious consequences of this illegal activity for the people and the economy of eastern Kentucky.”

“We cannot make an economic transition in eastern Kentucky without clean water for the future,” added Withrow. “More than 28,000 violations of the Clean Water Act cannot be swept under the rug.”

###

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.

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.

Mountaintop removal promotes lung cancer

Friday, October 17th, 2014 - posted by thom

A map from The Human Cost of Coal showing the above-average number of lung cancer deaths per 100,000 people in Central Appalachian Counties.

The body of research linking mountaintop removal mining to lung cancer just got a whole lot stronger.

Using dust samples collected in communities near mountaintop removal mines, a new study conducted by Dr. Sudjit Luanpitpong and other West Virginia University researchers found a direct link between air pollution and tumor growth.

From Ken Ward, Jr. of The Charleston Gazette:

The study results “provide new evidence for the carcinogenic potential” of mountaintop removal dust emissions and “support further risk assessment and implementation of exposure control” for that dust, according to the paper, published online Tuesday by the journal Environmental Science and Technology.

Six years ago, researchers found a close correlation between living in proximity of mountaintop removal coal mining sites and lung cancer mortality rates, even after adjusting for factors like smoking, poverty, race, etc. That 2008 study is just one of more than 20 studies linking mountaintop removal to health issues in neighboring communities.

While people in Appalachia have been aware of this strong correlation, this new study linking dust from mountaintop removal sites directly to the growth of lung cancer cells is the first of its kind.

“To me, this is one of the most important papers that we’ve done,” said [Dr. Michael Hendryx], a co-author of the new paper. “There hasn’t been a direct link between environmental data and human data until this study.”

Hendryx said, “The larger implication is that we have evidence of environmental conditions in mining communities that promote human lung cancer. Previous studies … have been criticized for being only correlational studies of illness in mining communities, and with this study we have solid evidence that mining dust collected from residential communities causes cancerous human lung cell changes.”

The coal industry and its allies in Congress have always been eager to dismiss claims that air and water pollution caused by mountaintop removal mining have any link to the high rates of lung cancer, cardiovascular disease and birth defects, or the decrease in life expectancy that counties with heavy mining have experienced over the past two decades.

Will this study get them to finally change their tune? It’s almost certain it won’t. It will be up to those of us who care about the health of Appalachian communities to raise our voices and simply drown them out.

Click here to learn more about how mountaintop removal impacts health in Appalachia, or visit The Human Cost of Coal on iLoveMountains.org.

The reclamation myth, it’s still happening too

Tuesday, October 14th, 2014 - posted by thom

{ Editor’s Note } A 2014 study on post-mining reclamation efforts found that “There is no evidence that mitigation is meeting the objectives of the [Clean Water Act] and looking forward there is no reason to believe this will change unless new mitigation requirements and scientifically rigorous assessments are put into place.”

It seems that whenever a picture of an active mountaintop removal mine site is posted online or shared on social media, someone steps in to comment that coal companies “put it back” or that, a few years after they reclaim the land “you won’t be able to tell the difference.”

For years, Appalachian Voices has been combating misleading claims about reclamation used by the industry and pro-coal politicians — especially the myth that mountaintop removal is necessary because it creates flat land for economic development. In a 2010 survey of mountaintop removal sites, we found that, of the 1.2 million acres of leveled Appalachian mountains, around 90 percent of reclaimed mine sites are not being used for economic development. In fact, most are just rocky grasslands not being used for anything at all.

LEARN MORE: Post-Mountaintop Removal Reclamation of Mountain Summits for Economic Development in Appalachia

Industry pic

The industry argues that it does a good job of reclaiming the land, and will use a handful of good examples of reclamation with a few nice pictures, and pretend that this is the norm. I particularly like this tweet from the West Virginia Coal Association a few weeks back.

As you can see it’s basically a pretty picture of the sun coming through the clouds with a caption that reads “100 Years of Coal Mining and West Virginia Remains Wild and Wonderful. This proves mining is a temporary land use.”

I can’t figure out how this picture “proves mining is a temporary land use.” I suppose the picture shows that companies have not blown up those particular mountains. Or the sky.

The reality of reclamation usually looks more like this…

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Or this…

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Or this…

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The failure to recapture the beauty that was once a 300-million-year-old mountain covered in old-growth, biodiverse forest is tragic, but it’s not the only problem with reclamation. Attempts to mitigate water pollution have repeatedly failed.

A 2014 University of Maryland study shows that mitigation and reclamation have totally failed to protect stream health.

According to the study:

Loss of aquatic biodiversity below [mountaintop removal] mining operations is well documented and there is no evidence that these downstream impacts decline over time–mine sites reclaimed over 20 years ago still contribute to significant degradation of water quality.

Overall the reports provide no evidence that stream mitigations being implemented for coal mining in the southern Appalachian states of Kentucky, Tennessee, Virginia, and West Virginia are meeting the objectives of the Clean Water Act to replace lost or degraded natural resource values and functions.

LEARN MORE: Mountaintop Mine Reclamation Not Adequately Restoring Affected Streams, Study Finds – Bloomberg BNA

The coal industry is blowing up mountains in Appalachia. They are not putting them back together again. The industry is polluting and burying streams, and they are not finding a way to fix them.

In 2009, the Obama administration promised to overhaul regulations meant to protect Appalachian communities and their waterways from mountaintop removal.

Yet, five years later, mountaintop removal coal mining is still happening. Until the Obama administration and Congress take serious actions, no amount of reclamation is going to fix the problems the mining is leaving behind.