Posts Tagged ‘Water’

Tennessee Rivers at Risk

Monday, June 15th, 2015 - posted by Laura Marion

By Cody Burchett

According to a report released this May by the nonprofit Tennessee Clean Water Network, surface water enforcement actions issued by Tennessee state regulators have dropped 75 percent since 2008.

Of the 53 enforcement orders issued last year by the Tennessee Department of Environment and Conservation, more than a quarter were related to paperwork rather than pollution events. The Clean Water Network concludes that this low number of enforcements is not due to a lack of violations, and that TDEC “needs to be more aggressive in taking swift, effective enforcement action.”

More than 30 percent of Tennessee’s surface waterways are impaired by pollution, according to a 2012 assessment by the U.S Environmental Protection Agency. Among these are portions of the Holston and Harpeth Rivers located in northeast and middle Tennessee, both of which were listed in this year’s annual America’s Most Endangered Rivers report by the nonprofit American Rivers. The report highlights major waterways facing an upcoming decision this year that could significantly impact the river’s health.

Keep the Clean Water Act going strong

Thursday, June 4th, 2015 - posted by sandra

Is the Obama administration ready to continue modernizing the landmark law?

After releasing the final Clean Water Rule last week, the EPA should continue modernizing the Clean Water Act by better protecting clean water from power plant and industrial waste.

After releasing the final Clean Water Rule last week, the EPA should continue modernizing the Clean Water Act by better protecting clean water from power plant and industrial waste.

Last week, the U.S. Environmental Protection Agency announced the release of its long-awaited Clean Water Rule, which clarifies the scope of waters protected under the Clean Water Act.

The finalized rule ends a decade of confusion; a 2006 U.S. Supreme Court decision brought into doubt the definition of “navigable waters,” which the EPA had historically interpreted to include areas connected to waters by tributaries or other smaller streams.

As The Los Angeles Times reports:

Before the new rule, up to 60 percent of American streams and millions of acres of wetlands were potentially overlooked by the Clean Water Act, EPA officials say. One in three Americans … use drinking water affected by these sources that lacked clear protection from pollution before the rule change, according to the agency.

Is the Obama administration ready to continue the trend of strengthening and modernizing the Clean Water Act — the crucial environmental law that came about due to levels of water pollution that seem unfathomable today?

As the EPA pursues updating the Effluent Limitation Guidelines, which provide standards on wastewater discharge from power plants, we hope that is indeed the case. Sixty percent of water pollution comes from coal-fired power plants alone, and these guidelines would also include natural gas and nuclear facilities.

The primary reason the EPA is even updating these guidelines is because clean water groups sued the agency for not having updated the rule since 1982.

These out-of-date standards do not contain federally enforceable limits on toxic heavy metals. Any limits are left for individual states to decide; as a result, 70 percent of current Clean Water Act permits for power plants do not have limits for heavy metals.

Even worse, the water pollution from these plants has become more dangerous since many coal-fired power plants have installed air pollution technology that “scrubs” emissions before they leave the smokestack. This is good news for air quality, but not for water quality. The scrubbed pollution has to go somewhere, and that somewhere is in waste impoundments where these pollutants supposedly “settle” to the bottom. Power plants are then allowed to dump water from these impoundments into our river and lakes, which sometimes serve as drinking water sources.

Heavy metals are dangerous at varying levels to wildlife and human health. The industry is also discovering that the chemicals used in the “scrubbing” process can interact with chemicals from drinking water treatment plants to create trihalomethanes, which have been linked to bladder cancer.

The EPA released draft options of the Effluent Limitation Guidelines in 2013 and received more 160,000 comments, most asking for the strong technological options that would create zero waste. The agency is planning to release the final standard this fall. But there is real concern among clean water advocates that the final rule may not pursue the most technically feasible option for stopping pollution from heavy metals and other chemicals, as required by the Clean Water Act.

We are going to need your help to crank up the pressure on the White House to make sure the EPA listens to us water-drinkers as it works to finalize the rule for this fall. Sign up here to receive updates. Follow us on Facebook and Twitter, too.

Silas House: A Remembrance of Jean Ritchie

Tuesday, June 2nd, 2015 - posted by guestbloggers

{ Editor’s Note } Silas House is an author, Kentuckian and activist, who also serves on Appalachian Voices’ board of directors. Silas shares this remembrance of Jean Ritchie, the Kentucky-born folk icon, who died yesterday. Last May, Appalachian Voices was graciously invited to participate in and benefit from “Dear Jean,” a tribute concert to Ritchie in Berea, Ky. Portions of this tribute are excerpted from the 2009 book Something’s Rising: Appalachians Fighting Mountaintop Removal by Silas House and Jason Howard, University Press of Kentucky

Silas House (middle) with Jean Ritchie, and his partner Jason Howard, editor of literary magazine Appalachian Heritage.

Silas House (middle) with Jean Ritchie, and his partner Jason Howard, editor of the literary magazine Appalachian Heritage.

Above all, kindness always lit up the face of Jean Ritchie, who passed away June 1 at the age of 92. And she possessed the same kindness in her hands, in the slight, humble bend of her neck, in her beaming smile. And of course that kindness came through the clearest — the cleanest — in her voice.

It was there in her speaking voice, but also in her singing, the very thing that caused The New York Times to proclaim her “a national treasure” and the reason she became widely known as “The Mother of Folk.” But along with that kindness was a fierceness that led her to become one of the major voices in the fight for environmental justice.

I grew up in Southeastern Kentucky, two counties away from where Ritchie had been raised. She was a source of incredible pride for my people. Everyone I knew loved Jean Ritchie, and they especially loved the way she represented Appalachian people: with generosity and sweetness, yes. But also with defiance and strength. By the time I first met her in 2006, Jean was a true legend. Although I was in total awe of her, it didn’t take me long to feel right at home and we became fast friends.

I loved visiting with her and her wonderfully devoted husband, George Pickow, who passed away in 2010. Anytime I would comment on her legendary status, she’d brush it aside, embarrassed. But she was a true inspiration to so many of us. Her accolades are too many to list. In 2002 she was awarded a National Heritage Fellowship from the National Endowment for the Arts, the highest award given in the nation to traditional artists and musicians. Her original compositions have been performed by such artists as Johnny Cash, June Carter Cash, Judy Collins, Emmylou Harris, the Judds, Kathy Mattea, Dolly Parton, Linda Ronstadt, and many others.

Jean Ritchie, 1922 - 2015

Jean Ritchie, 1922 – 2015

Born in 1922, she went to New York to work in a settlement school and was amazed to find that she eventually became well-known for her singing, playing, and songwriting. By the end of the 1960s Ritchie had recorded twenty albums, served on the board of and appeared at the first Newport Folk Festival (where her iconic performance of “Amazing Grace” is still talked about by anyone who was there), and was considered one of the leaders in the folk music revival.

She had also single-handedly popularized the mountain dulcimer. And steadily throughout her career she had become more and more concerned with the environmental injustices facing her homeland. She wrote her first environmental-minded songs under the pseudonym of Than Hall so her parents wouldn’t be harassed and because she felt using a man’s name might make them easier to become published. But eventually she embraced the fight for environmental justice and became a symbol of the movement.

In 1974 she recorded what many consider the first of her three true masterpieces (along with None But One and Mountain Born) out of her forty albums. Clear Waters Remembered contains three of the original compositions she is most often recognized for: “West Virginia Mine Disaster,” “Blue Diamond Mines,” and “Black Waters.” It would also be the album that would solidify Ritchie’s position as an environmentalist and activist.

“Black Waters” in particular became a rallying cry for an ever-growing outrage against the environmental devastation being caused by strip mining, a form of coal mining that became prominent in the 1960s. The practice was giving many Appalachians pause, especially since most of the coal companies were able to mine the coal with broad form deeds, many of which had been sold decades before. Ritchie became a part of this movement with “Black Waters,” which became its anthem.

After struggling with writing “Black Waters” for awhile, Ritchie finished the song after being invited to participate in a memorial concert for Woody Guthrie. She performed it for the first time during that show and introduced it as something Guthrie “might have written had he lived in Eastern Kentucky.” Besides being a powerful environmental song, it also resonated with Appalachians who might not have identified themselves as environmentalists but certainly had a love for the land in their very blood.

1977’s None But One is Ritchie’s most critically-lauded album; it was even awarded the prestigious Critics Award from Rolling Stone magazine. The album contained two more of Ritchie’s most famous songs of social consciousness, “None But One,” a treatise on racial harmony, and “The Cool of the Day,” an ancient-sounding spiritual which demands environmental stewardship and is now widely used as one of the major anthems in the fight against mountaintop removal. It is a song that has already achieved classic status by being included in the hymnal of the Society of Friends. Ritchie allowed Kentuckians For The Commonwealth to use the song on their popular compilation Songs for the Mountaintop, which raised money for the fight against mountaintop removal. In 2007 Ritchie performed the song at The Concert for the Mountains, an event held in New York City with Robert Kennedy, Jr. in conjunction with a delegation of Appalachians who attended the United Nations Conference on Environmental Stability to speak out about the devastation caused by the form of mining.

“I never feel that I’m doing very much to help our poor mountains,” Ritchie modestly told me in 2008 after I told her she was one of the reasons I had become an environmentalist. “Beyond making up songs and singing them, I don’t know what else to do. It seems an accolade I don’t deserve.” I wanted to tell her that words and music were the main ways we had always fought back, and that her words and music had done more than she could ever imagine. But then I saw that there were tears on her eyes. Her face was turned to the white light of the window and she was lit as if beatific. I had always thought she was. In that moment, Jean was visibly upset. “Sometimes, when I think of how it’s all gone …” she began, but had to stop speaking.

Jean leaves behind a legacy of love and light. Of kindness and dignity and strength. She fought back with words and music, and she taught us to do the same. I can’t imagine a better way to be remembered than that.

Jean Ritchie’s “Black Waters” performed by John McCutcheon, Tim O’Brien, Suzy Bogguss, Kathy Mattea, Stuart Duncan and Bryn Davies.

Appalachian Crayfish: Canaries in a Coal Mine

Tuesday, May 5th, 2015 - posted by Dac Collins

By Dac Collins

The U.S. Fish and Wildlife Service is proposing that two species native to Appalachia — The Big Sandy crayfish (pictured) and Guyandotte River crayfish — be listed as endangered under federal law after determining the species are in danger of extinction “primarily due to the threats of land-disturbing activities” such as mountaintop removal coal mining. Photo by Zachary Loughman, West Liberty University on Flickr

If you find yourself at a crawfish boil anytime soon, don’t be afraid to go back for seconds. The two species that are sold commercially — red swamp and white river crayfish — are prolific. They can be found in the wild throughout the South and are especially abundant in Louisiana, where they are also farm-raised in ponds.

But here in Appalachia, some of our native crayfish populations are teetering on the brink of extinction, according to a recent report issued by the U.S. Fish and Wildlife Service. Whether or not they are pushed past the point of no return depends largely on the outcome of a recent proposal by the agency to add them to the federal list of endangered species.

Like most creek-dwelling crawdads, the two species in question — the Big Sandy crayfish, which are native to the Big Sandy River basin in Virginia, West Virginia and Kentucky, and the Guyandotte River crayfish, a closely related subspecies found in West Virginia — spend a majority of their lives wedged into the crevices of the creek bottom. These nooks and crannies shelter the crayfish from predators and serve as places to lie dormant during the winter months. But when these rocky creek beds are covered up in sediment, the habitat that these creatures depend on to survive is lost entirely.

This is precisely what is occurring in the Big Sandy and Guyandotte River drainages of West Virginia. The sedimentation has become so severe in recent years that the Guyandotte crayfish population has retreated to the mid-reaches of a single stream, Pinnacle Creek, in Wyoming County.

If the crayfish disappear completely, the ecology of these creeks could change drastically. The freshwater crustaceans are a primary food source for many of the native fish species, including smallmouth bass and trout, which also happen to be the two most sought after sport fish here in Appalachia. Take away the food source and these creeks might eventually be fishless.

The cause of siltation is obvious when you look at where these creeks are located. There are 192 active coal mines in the area, many of which are mountaintop removal mines that are dumping their waste into the headwaters of streams, effectively burying them. And that’s just standard operating procedure. If an accident occurs, a toxic slurry of silt and chemicals spills into the creeks that feed the rivers that run into the reservoirs we drink out of, wreaking havoc on species like crayfish along the way.

The Fish and Wildlife Service specifically mentioned mountaintop removal coal mining in its report on the two crayfish species. The agency determined that, “the Big Sandy crayfish and Guyandotte River crayfish are in danger of extinction, primarily due to the threats of land-disturbing activities that increase erosion and sedimentation, which degrades the stream habitat required by both species,” and that, “an immediate threat to the continued existence of the Guyandotte River crayfish is several active and inactive surface coal mines, including MTR mines, in the mid and upper reaches of the Pinnacle Creek watershed.”

The FWS report also called attention to impaired water-quality — especially hazardous concentrations of sulfate and aluminum — in areas where most of the mines are closed, proving that “the detrimental effects of coal mining often continue long after active mining ceases.”

The proposed endangered species listing could have considerable impacts on the coal mining industry. If the Big Sandy and Guyandotte crayfish are protected under the Endangered Species Act, it would lead to more strictly enforced water quality regulations, which could affect ongoing mining operations in the Big Sandy and Guyandotte River basins as well as coal companies seeking permits to mine in the area.

The Fish and Wildlife Service is accepting public comments on this proposal until May 16. Click here to take action and ask the Fish and Wildlife Service to protect these two Appalachian species.

Don’t drink the water

Wednesday, April 22nd, 2015 - posted by sarah
Dozens of North Carolinians living near Duke Energy's coal plants learned this week that that their well water is unsafe to drink or use for cooking.

Dozens of North Carolinians living near Duke Energy’s coal plants learned this week that that their well water is unsafe to drink or use for cooking. Photo by Avery Locklear

Dozens of residents across North Carolina received notices this week telling them not to drink or cook with their well water due to recent tests which show unsafe levels of contaminants that may be associated with coal ash.

As part of North Carolina’s coal ash law enacted last year, Duke Energy is required to test the well water of residents living within 1000 feet of the massive coal ash ponds that dot the state.

For years, the demands of residents in communities next to coal ash ponds and environmental advocates were ignored by Duke and the state Department of Environment and Natural Resources, despite independent water sampling that showed elevated levels of contaminants. Now, more than a year after the Dan River coal ash spill, water testing results are coming back, giving residents and regulators a clear picture of just how widespread the problem is.

Tell Duke Energy to supply residents with safe water!

Residents living near 9 of the 14 coal plants across the state have been notified of exceedances of the groundwater standard for concerning metals such as arsenic, chromium, and vanadium. According to DENR, 87 of the 117 wells Duke tested exceeded North Carolina’s groundwater standards for one or more toxic constituents. Some wells also had high levels of constituents that may be naturally occurring in North Carolina soil, such as iron, manganese and pH.

Duke has been quick to latch onto those exceedances as evidence that the contamination is not from their illegally leaking coal ash ponds. But residents who can see coal ash ponds from their yards and have watched Duke’s smokestacks for decades have little doubt why they are now being told “don’t drink the water.”

DENR officials say they will investigate the source of contamination and, if it is linked to coal ash pollution, Duke will be required to provide residents with clean water. But that reassurance is hardly recompense for North Carolinians who may have been unknowingly drinking contaminated water for an unknown amount of time. And until the source is determined, residents will have to foot the bill for bottled water.

Take action now!

Update May 31, 2015:

More residents have received results from their well water tests and 166 well owners out of the 207 wells tested so far have been told not to drink their water.

Duke Energy still denies that their leaking coal ash ponds have contaminated neighbors’ wells, but the company has agreed to supply bottled water to families who have been told that they can not safely drink or cook with their water. Duke is supplying a gallon per person today.

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. 

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.

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.

Why do you care?

Monday, December 1st, 2014 - posted by kara

Whether you’re two days or 20 years deep in environmental or social justice organizing, we all ask ourselves the same question day in and day out: why do I care?

It’s an important question — and the act of asking can be just as important as proclaiming your answer. You can feel an increased ability to contribute just by opening your heart and mind to your deeper values and motivations.

Rhiannon Fionn, creator of Coal Ash Chronicles, brings “Why I Care” to the social media scene in the spirit of story-sharing, collaboration, power building and advocacy. You can watch more than a dozen short clips submitted by moms, lawyers, Riverkeepers, doctors and many others who want to see coal ash cleaned up and stored in a safe manner.

“Why I Care” is a simple way for people to speak up for their interests when it comes to the dangers of coal ash. We are all connected to this toxic waste, whether you live near an ash impoundment or your electricity is sourced from a coal-fired power plant. I invite you to delve into why you care and share that with your family, friends and the world!

In November, I took this idea to Residents for Coal Ash Cleanup, a local group in Belews Creek, N.C., fighting to save their community from coal ash contamination by the nearby Duke Energy power plant. Seven residents shared their reasons for caring about coal ash. Take a minute to hear why Jeannie cares about the coal ash pond near her home.

She raises very valid points, considering there are more than 9,000 people that live within a 5-mile radius of the Belews Creek coal ash pond and thousands more who live downstream on the Dan River.

If you want to share why YOU care, here are some easy instructions:

1. Have a friend record a video of you with a phone or camera — make sure to do it in “landscape” mode on your phone and stand close to the phone so you get the best sound quality. Here are other phone video tips.

3. In the video, say your name, where you live and why YOU care about coal ash. Practicing before recording is always a good idea.

4. Upload the video file directly to your YouTube page or save it to your computer and then upload it to YouTube — you may have to make a Youtube account which is easy!

Include the tag “Coal Ash” in the video and use these hashtags for social media: #coalash and #whyicare. Rhiannon will find your video and add it to the full “Why I Care” playlist.

5. If you don’t know how or want to upload to Youtube, contact kara@appvoices.org or 828-262-1500 and I can help you upload through Appalachian Voices’ channel.

6. There is a Dropbox option — contact me to get set up.

7. SHARE that video and ask others to speak up!

A full list of “Why I Care” videos can be found here.

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