Posts Tagged ‘Riverkeeper’

Court Victory for Clean Water in Kentucky: The Battle Continues

Friday, July 19th, 2013 - posted by eric

Acidic mine water being discharged from one of Frasure Creek’s Kentucky coal mines

Last week, an attempt by the Kentucky Energy and Environment Cabinet to toss concerned citizens out of court failed.

Judge Phillip Shepherd denied a motion to dismiss our challenge of a settlement between Frasure Creek Mining and the cabinet. Appalachian Voices and our partners KFTC, Kentucky Riverkeeper and Waterkeeper Alliance, will now be allowed to proceed with our argument that the settlement should be vacated.

In October of 2010, we filed a Notice of Intent to Sue Frasure Creek for submitting false water monitoring data. Frasure Creek and the cabinet reached a settlement for those violations, but it has not been approved by the court. Before that, the data Frasure Creek submitted to the state never showed any violations. After our legal action, they switched labs and began showing hundreds of water quality violations every month.

We attempted to sue Frasure Creek for these subsequent violations, but the cabinet filed a complaint in state administrative court for the same violations. We intervened and became full parties to that case, but then a slap on the wrist settlement was entered between Frasure Creek and the cabinet completely without our consent. Our current challenge to this settlement is based on the fact that we are full parties in the case yet we had no say in the settlement’s creation.

The cabinet attempted to get our challenge thrown out because they claimed that we did not follow proper procedures when we filed it, but the judge dismissed their arguments. Now, the cabinet must respond to the substance of our challenge.

>> Click here to read the ruling
>> Click here to read more about this challenge
>> Click here for more information on our Kentucky Litigation

Appalachian Voices and Partners Challenge Kentucky’s Backroom Deal With Coal Company

Friday, May 17th, 2013 - posted by eric

Watercolors by Frasure Creek. State inspector's photos show a variety of colors of water at Frasure Creek mines.

Yesterday, Appalachian Voices and our partner organizations filed a “petition for review”, essentially an appeal of a settlement between Frasure Creek Mining and the Kentucky Energy and Environment Cabinet. This settlement lets Frasure Creek off the hook for thousands of water quality violations over the past two years, while doing little to ensure that the company fixes its water quality problems.

Our challenge of this settlement focuses on the way in which it came about. But first, a bit of background.

We have a separate case that is ongoing against Frasure Creek for submitting false water monitoring data (entire reports were duplicated and only the dates were changed). After we uncovered this problem the company began turning in more accurate reports, which for the first time showed lots of pollution problems. We then filed a second suit against Frasure Creek for thousands of these pollution problems (which had been hidden by reporting problems before our first suit). Then the cabinet also filed a complaint for these pollution violations and more like them in state administrative court (a court run by the cabinet itself).

We intervened in that case and became full parties to it, but were then shut out of it completely. In fact the settlement was entered despite our previous objections, and there is no evidence that our objections were even considered. The cabinet and Frasure Creek negotiated a settlement completely without us. The law and common sense both dictate that an agreement is not valid unless all the parties involved agree to it, and that is the basis for our challenge of this settlement yesterday.

Kentuckians Challenge Cabinet’s Order for Failing to Protect Clean Water from Coal Pollution

Friday, May 17th, 2013 - posted by eric


Appalachian Voices * Kentuckians For The Commonwealth * Kentucky Riverkeeper * Waterkeeper Alliance

• Eric Chance, Appalachian Voices, 828-262-1500,
• Pat Banks, Kentucky Riverkeeper, 859-200-7442,
• Peter Harrison, Waterkeeper Alliance, 828-582-0422,
• Ted Withrow, Kentuckians For The Commonwealth, 606-784-6885 or 606-782-0998,

Frankfort Kentucky-Continuing their campaign to make sure Kentucky’s water is safe for everyone, several groups have challenged plans by the Beshear administration to let Frasure Creek Mining “off the hook” for repeated violations of the Clean Water Act.

Appalachian Voices, Waterkeeper Alliance, Kentuckians For The Commonwealth, Kentucky Riverkeeper and several individuals (the petitioners) asked the Franklin Circuit Court Thursday to vacate an Agreed Order signed in April by Environment and Energy Cabinet Secretary Len Peters that claims to resolve all recent water quality violations by the company.

They point out that the settlement “is inadequate to address Frasure Creek’s pollution problems and prevent such harms from occurring in the future.” They called the administration’s action “arbitrary and capricious, an abuse of discretion, contrary to law, and not supported by substantial evidence.”

“This settlement lets Frasure Creek off the hook for thousands of water quality violations,” explained Eric Chance, a water quality specialist with Appalachian Voices. “For years Frasure Creek had been submitting false monitoring reports. During that time they never reported any water quality problems. After we exposed these false reports, they began using more reputable labs and started showing hundreds of water quality violations every month.

“Over the past few years Frasure Creek’s water discharges haven’t really improved and I don’t expect there to be any improvements in the water coming off Frasure’s mines from this settlement,” Chance added.

“Clean water is not just a good idea. Clean water is critical to our health and well being,” said Pat Banks with Kentucky Riverkeeper. “We have learned that we cannot be complacent. The Clean Water Act enforces the notion that if companies are out of compliance and enforcement by the state fails, then citizens can and must step in to protect our waters. That’s what we are doing here.”

The petitioners also point out that they were granted full party status in the administrative enforcement case but were shut out of negotiations between the Cabinet and Frasure Creek that resulted in the final Agreed Order.

“The Cabinet has once again systematically excluded Kentucky citizens who are fighting to protect the water they use. After bringing Frasure Creek’s false reporting and pollution to the Cabinet’s attention, the Cabinet has tried, at every step, to sweep this matter under the rug and quickly settle with the company and exclude citizens from the process,” said Mary Cromer, with the Appalachian Citizens Law Center and one of the attorneys representing the petitioners. “We bring suit against the Cabinet for failing to do what’s necessary to ensure that Frasure Creek’s pollution is cleaned up and for excluding the citizens from their rightful roles as co-enforcers of the Clean Water Act.”

“We as citizens have the right to intervene and see and participate in this process,” explained Ted Withrow with Kentuckians For The Commonwealth. “Yet the Cabinet continues to ignore the law and shield another coal company from any meaningful enforcement. This Agreed Order was done behind closed doors shutting citizens out, even though we had full rights to be part of the process.”


In June 2011, the petitioners filed a 60-day Notice of Intent to Sue, documenting more than 2,800 violations of the Clean Water Act by Frasure Creek in the first three months of 2011. After conducting its own investigation, the Cabinet filed an internal administrative enforcement action alleging many of these same violations.

In November 2011, the petitioners were granted full intervention status.

However, the Cabinet conducted negotiations with Frasure Creek without notice to and participation by the intervenors, resulting in the Agreed Order signed by Peters. Kentucky law prohibits the entry of an Agreed Order without the consent of each and every full party to the Administrative Proceeding.

The violations in this case are similar to those in a 2010 lawsuit pending in Franklin Circuit Court, in that older case false reporting made it impossible to identify pollution problems like the ones at issue in this case. In the original lawsuit, the Cabinet filed an enforcement action against Frasure Creek in Franklin Circuit Court after the same petitioners made public thousands of Clean Water Act violations. In that case, the court granted the petitioners full intervention status. So in the 2011 case, the Cabinet took a different enforcement route to avoid public intervention. However, the administrative judge also granted full intervention status.


Coal Ash: Now a Part of a Balanced Breakfast

Thursday, January 31st, 2013 - posted by Appalachian Voices

By Hallie Carde
Red, White and Water intern, Spring 2013

This just in: in addition to fruits and veggies, our nation’s children should be getting their daily dose of coal ash. Or at least that’s what statements at a public hearing in Franklin County, Missouri, seem to suggest.

Just last week, there was a hearing for a lawsuit filed by the Labadie Environmental Organization over a zoning amendment that would allow Ameren Corp. to construct a new coal ash landfill in the heart of a floodplain. Toxicologist Dr. Lisa J.N. Bradley, testifying on behalf of Ameren Energy Corporation, said, “A child could consume coal ash every day and have no increased exposure to arsenic.”

Bradley was recently elected to the Executive Committee of the American Coal Ash Association, a lobbying organization whose membership includes Ameren, Duke Energy, Southern Company and other large coal-burning utilities. Unfortunately, it seems that conflict of interest was lost on Associate Circuit Court Judge Robert D. Schollmeyer, who dismissed the lawsuit citing Bradley’s testimony.

Maximiliano Calcano, age 2, is one of the first children born with a dramatic birth defect attributed to the coal ash dumping in the Dominican Republic.

There are many who have had to face the traumatic effects of toxic coal ash firsthand. Following the AES Corporation’s dumping of 80,000 tons of coal ash waste along the shores of the Dominican Republic between 2003 and 2004, the country’s women have suffered years of consistent miscarriages, abnormal levels of arsenic in their blood, and births to babies with cranial deformities, external organs, and missing limbs.

While we have yet to uncover such a horrific case here in the states, concerns over coal ash are real. Archie Dixon lives just south of Belmont, N.C., where Duke Energy’s coal ash ponds are some of his closest and most unwelcome neighbors. Distrustful of the visible grime and discoloration of his water, Mr. Dixon has been buying bottled water for years, unwilling to ingest the water from his home’s private well. Despite reassurance from Duke Energy officials who say that lab tests show that the sediment in Mr. Dixon’s water is of naturally occurring materials, he refuses to take any risks with his water. Dixon is not the only member of his community concerned about coal ash.

Cape Fear: Starring Toxic Contaminants, Directed by Coal Ash

Sunday, October 28th, 2012 - posted by Matt G

When state regulators were shown groundwater test samples taken near the Cape Fear River in eastern North Carolina with elevated levels of arsenic, thallium and chloride, the contaminants that seeped in from Lake Sutton, a coal ash pond next to the Sutton coal plant….that means the regulators made the plant clean it all up, right?

It's as simple as she says: do we want coal ash (which makes Robert de Niro in Cape Fear look like an alright guy), or do we want clean water?

Well, they didn’t. That’s why last week, the Southern Environmental Law Center filed a formal complaint on behalf of four groups in North Carolina to push for more enforcement from the state Environmental Management Commission on the regulation of coal ash ponds. Kemp Burdette, the Riverkeeper with Cape Fear River Watch, said that state regulators are collecting samples that exceed NC groundwater standards, but are not forcing any of the coal plants to clean it up. “Over time, exposure to this stuff is going to make people really sick,” he said. “It’s going to have an impact on the human body.”

Coal ash, the toxic byproduct of burning coal for electricity, is typically stored in wet, often unlined ponds. These ponds then seep into neighboring groundwater. All across the nation, groundwater resources have been contaminated by coal ash. And as the Washington Post recently demonstrated, any protection of our nation’s waters from coal ash is being halted until after the election. (more…)

A One-Two Punch in the Fight for Clean Water

Thursday, August 23rd, 2012 - posted by brian

It has been a week of good news in the fight for stronger protections against coal ash pollution. A court settlement in South Carolina and a major decision regarding the 2008 TVA Kingston coal ash spill make for a one-two punch against the poorly regulated toxic waste.

A federal court found that the Tennessee Valley Authority is ultimately liable for the December 2008 coal ash spill. The failed pond at TVA's Kingston Plant released more than one billion gallons of toxic coal ash and covered 300 acres.

This morning, a federal court ruled that the Tennessee Valley Authority is liable for the massive coal ash spill at its Kingston Plant in December 2008. In his written opinion, U.S. District Judge Thomas Varlan ruled that the spill resulted ultimately from TVA’s “negligent nondiscretionary conduct” — far from the unpredictable geologic event that TVA lawyers claimed was the cause during the trial.

In fact, we know more than ever just how preventable the catastrophic spill was. In the months following the event, an engineering firm hired by TVA issued a report that identified the unstable layer of soil beneath the coal ash which had gone undetected for decades as TVA continued to pile on larger amounts of the toxic waste. Subsequent reports revealed internal agency memos that contained warnings that could have prevented the spill. And in his ruling, Varlan was sure to mention that had TVA investigated and addressed the unstable pond, the spill might have been avoided.

Shorty after the coal ash pond failed, it became clear that the Kingston spill would become the worst environmental disaster of its kind in American history. TVA initially estimated that 1.7 million cubic yards burst from the pond and into the Emory and Clinch Rivers. They later had to revise that estimate to more than 5.4 million cubic yards — more than a billion gallons and 100 times larger than the 1989 Exxon Valdez oil spill. (more…)

Red, White and Water Campaign Turns Up the Heat on Toxic Coal Ash

Tuesday, February 21st, 2012 - posted by jamie

On Feb. 15, Appalachian Voices’ Red White and Water team, North Carolina Riverkeepers and other organizations launched a campaign called N.C. Can’t Wait, a petition and education drive to protect communities from toxic coal ash pollution.

The campaign was created after monitoring near coal ash ponds at North Carolina’s 14 coal-fired power plants confirmed that toxic heavy metals such as arsenic, boron, selenium and thallium are leaking into groundwater.

The petition targets the state’s Department of Environment and Natural Resources, who reported they were investigating the contamination but did not provide a timeline on enforcement, and the U.S. Environmental Protection Agency, who has postponed finalizing long-awaited rules that would provide federal guidelines to clean up coal ash lagoons nationwide.

The new coalition is coordinating upcoming events for the spring, including a series of Clean Water Events on March 22 in Charlotte, Asheville and Wilmington, scheduled to coincide with World Water Day.

In mid-January, Appalachian Voices joined with Earthjustice and other environmental groups across the country to file a notice of intent to sue the EPA to force the release of the delayed guidelines governing toxic coal ash. The notice was filed under the Resource Conservation and Recovery Act, which requires the agency to ensure that safeguards are regularly updated to address threats posed by wastes.

The EPA delayed the first-ever federal protections for coal ash for nearly two years despite documented evidence by its own researchers and environmental groups showing coal ash has poisoned aquifers and surface waters at 150 sites in 36 states.

More than 5.5 million tons of coal ash is created each year in North Carolina, the ninth highest total in the country. There are 26 active ponds in the state, 12 rated “high-hazard” by the EPA, meaning that if the ponds were to break, it would probably cause a loss of human life.

To sign the petition, or to learn more about our coal ash campaign and clean water events, visit

In Surry County, A Step in the Right Direction

Appalachian Voices’ campaign to stop a massive Old Dominion Electric Cooperative coal-fired power plant proposed for Surry County, Va. has been heating up.

In a positive development last fall, the Board of Supervisors in neighboring Isle of Wight County passed a resolution of opposition to the coal plant.

But in a recent municipal election, two of the three supervisors who voted for the resolution lost their seats, and a new Isle of Wight supervisor brought up a motion to declare the county’s stance on the coal plant as neutral.

Our Virginia team went into overdrive, working alongside local citizens to get the word out. Dozens of letters and phone calls from county residents asking the board to uphold the resolution were made in the week leading up to the most recent meeting.

Thanks to this overwhelming opposition to the coal plant in Isle of Wight County, the resolution of opposition was upheld during a meeting on Feb. 16. We will be working to organize other communities in the Hampton Roads region of Virginia to oppose the proposed plant in the coming months.

Nally & Hamilton Case Continues in State Court

Friday, December 9th, 2011 - posted by eric

Yesterday Appalachian Voices along with our partners Kentucky Riverkeeper, Kentuckians For The Commonwealth, and Waterkeeper Alliance challenged the recent settlement between Nally & Hamilton and the Kentucky Energy and Environment Cabinet in state court.

Click here to see the press release with more information on this newest development.

Click here to see the how the case has developed.

Click here to view the state court petition.

Several Kentucky news outlets covered this development. Click the links below to see the news articles.
Ronnie Ellis for the Daily Independent
Erica Peterson for WFPL Public Radio
Bill Estep and Beth Musgrave for the Lexington Herald-Leader

Groups Challenge Public’s Exclusion From Secret Negotiations

Friday, December 9th, 2011 - posted by eric

FOR IMMEDIATE RELEASE: Friday, December 9, 2011

An agreement negotiated in secret between the Beshear administration and a major polluter in eastern Kentucky does little to protect the public or prevent future violations, claimed several groups representing Kentucky citizens who use water polluted by the company’s coal mining operations.

The citizens’ groups filed a petition in Franklin Circuit Court on Thursday asking that the agreement between Nally & Hamilton Enterprises and the Kentucky Energy and Environment Cabinet be vacated on the grounds that there is “no factual evidence in the record, much less substantial evidence, [that] supports a finding that the Agreed Order is a fair resolution of Nally’s thousands of [Clean Water Act] violations, or that it will be an effective deterrent of future violations.”

The agreement was approved by cabinet Secretary Len Peters in November, despite the objections of the groups and despite their exclusion from the negotiating process.

“It is clear that the Kentucky Energy and Environment Cabinet is acting in its own best interest and the best interest of the coal industry rather than trying to protect the people and environment of Kentucky,” said Eric Chance of Appalachian Voices. “This settlement creates the appearance that the cabinet is doing its job while letting Nally & Hamilton off the hook for a huge but unknown number of serious violations.”

Nally & Hamilton Enterprises, based in Bardstown, is one of the largest producers of coal in Kentucky. They primarily use the controversial practice of mountaintop removal, where mountains are destroyed to reach thin coal seams. The remaining rubble is then dumped in the valleys and streams below.

Several principal officers and employees of Nally & Hamilton and their spouses contributed $6,000 to Beshear’s re-election campaign on July 21, just two weeks after the citizens groups were allowed to intervene in the case, according to the Kentucky Registry of Election Finance.

The case began in March when Appalachian Voices, Kentucky Riverkeeper, Kentuckians For The Commonwealth, and Waterkeeper Alliance, represented by Natural Resources Defense Council, gave notice to Nally & Hamilton that they planned to sue the company for 12,000 violations of the Clean Water Act, which occurred over a two-and-a-half-year period. The violations related to discharges from many of the company’s coal mining operations in eastern Kentucky and involved false and incomplete pollution discharge reports submitted to the cabinet.

Cabinet officials, who had previously ignored these reports, finally reviewed Nally & Hamilton’s discharge reports after receiving the notice letter and in May filed an administrative enforcement action against the company. It seems that the cabinet did this in an effort to protect the company by trying to pre-empt a federal lawsuit the groups planned to file. The administrative action had no preemptive effect under the law, however, and the groups filed the federal suit anyway.

The groups also asked to intervene in the administrative proceeding, and in July the hearing officer granted the groups intervenor status, making them full parties in the case. However, cabinet officials ignored the hearing officer’s strong encouragement to include intervenors in settlement negotiations and negotiated a settlement with Nally & Hamilton without notifying or involving the intervening parties.

“There are so many loopholes in this secretly crafted document, it becomes strikingly offensive to anyone the least bit familiar with Clean Water Act rules. This Agreed Order represents business as usual between cabinet officials and a scofflaw coal company, literally at the expense of citizens’ lives and well-being,” said KFTC member Suzanne Tallichet. “We are contesting this agreement because citizens living in coal-impacted communities deserve much better from a taxpayer supported state agency that is supposed to be diligently protecting people over corporate profits.”

As stated in an October letter to Peters, and repeated in Thursday’s court filing, the agreement falls short because (among other things):

• The cabinet seems not to have investigated the possibility that Nally & Hamilton’s violations were the result of intentional fraud;
• There is no evidence that the cabinet calculated what civil penalty amount is necessary to deter future violations (the fines were less than 1% of what they could have been);
• The agreement does not list or even describe what violations are being resolved; so it isn’t clear the cabinet even knows what violations this settlement would resolve;
• The agreement leaves most remedial measures completely undefined, requiring only that Nally & Hamilton submit proposed remedial measures after the agreement is signed; this makes it impossible to determine whether those remedial measures will fix Nally & Hamilton’s violations.

“The Kentucky Environment Cabinet needs to get out of the coal business and do their job protecting the public. This is just common sense,” said Pat Banks of Kentucky Riverkeeper. “Instead they ignored the hearing officer’s order giving us intervenor status and negotiated a secret agreement that does little to protect our people or prevent future violations. Our people are shocked that the cabinet chooses to protect companies that are polluting our land and water and breaking the laws thousands of times rather than protect the health and well-being of Kentucky’s land and people.“

“The people of Kentucky deserve to know what is being dumped into their waters. Nally & Hamilton has been submitting false data and releasing unknown amounts of pollutants for at least five years and the cabinet thinks this warrants a minor slap on the wrist,” added Chance.

The petition asks the Court to order the cabinet to produce factual evidence supporting the agreement and an explanation of how it will adequately remedy past violations and deter future violations. Failing that, the case should be returned to the Hearing Officer for additional fact-finding and adequate remedies to protect the public interest.

Last week, without notice or reason, Peters fired Natural Resources Commissioner Carl Campbell just as Campbell was preparing to travel to a meeting with Nally & Hamilton. “How can we expect to see effective enforcement of environmental laws against coal companies if top cabinet officials have to choose between protecting the environment and protecting their jobs?” asked Chance.

Click here to view a copy of the petition.


Eric Chance, Appalachian Voices – 828-262-1500,
Pat Banks, Kentucky Riverkeeper – 859-527-3334,
Suzanne Tallichet, Kentuckians For The Commonwealth – 606-776-7970,
Peter Harrison, Waterkeeper Alliance – 212-747-0622 ext. 32,

Kentucky Energy and Environment Cabinet cuts deal with Nally and Hamilton for Water Pollution Violations

Wednesday, November 23rd, 2011 - posted by eric

Last week the Kentucky Energy and Environment Cabinet entered a settlement with Nally and Hamilton Enterprises to resolve tens of thousands of violations of the Clean Water Act. The pending agreed order, originally submitted in September, was signed by the Cabinet Secretary Len Peters, now making it official.

Nally and Hamilton is one of the largest producers of Mountain Top removal Coal in Kentucky. They are also being sued by a number of citizens over flooding caused by one of their mines, which lead to a great deal of property damage and killed two people. (more…)