Posts Tagged ‘Water Pollution’

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.

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.

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.

Under Pressure: A Fractured Relationship with Natural Gas

Monday, April 13th, 2015 - posted by Dac Collins

A Fractured Relationship with Natural Gas

By Molly Moore

Drive along a winding country road in an active shale drilling area, and the oil and gas industry’s influence is unmistakable — streams of heavy truck traffic often straddle both lanes, a web of well-pad access roads and pipeline right-of-ways carve into the hillsides, erosion from fresh clearcuts spills into roadside ditches and creeks, and the occasional odor of natural gas can hover in the air for a quarter mile or more.

A natural gas drilling rig in Loyalsock Creek Valley, Pa., sits near a family cemetery and Baptist church. Photo courtesy of Terry Wild Stock Photography.

A natural gas drilling rig in Loyalsock Creek Valley, Pa., sits near a family cemetery and Baptist church. Photo courtesy of Terry Wild Stock Photography.


Despite the industry’s omnipresence, much is still unknown about the form of natural gas extraction known as fracking, and researchers are regularly adding to the existing knowledge about the long chain of processes involved in shale exploration.

Hydraulic fracturing and horizontal drilling techniques were first combined in the 1990s to form modern-day fracking, but the process didn’t launch a full-fledged frenzy of shale exploration until the 2000s.

According to the Wall Street Journal, at least 15.3 million people have lived within a mile of an oil and gas well drilled after 2000. Natural gas withdrawals from United States shale leapt from about 2 million cubic feet in 2007, the first year that the U.S. Energy Information Administration began collecting shale-specific data, to nearly 12 million cubic feet in 2013.

An Introduction

From rural roads to global economies, natural gas is big news. Over the past 15 years, the advancement of horizontal drilling and hydraulic fracturing — two steps in a method of oil and gas extraction that is commonly known as fracking — has transformed communities, national energy politics, and even international conflicts.

For all of the global and national repercussions of fracking, this form of extraction produces intensely local effects — it is experienced up-close in backyards, farms and neighborhoods, but fracking’s neighbors often have little say in the matter.

Gas travels from Point A to Point B — and points C through Z — in a process that is more than just a matter of transportation. Continued investment in an emerging pipeline network has the potential to shape the future of America’s power supply by engraining natural gas in the energy landscape.

As its grip grows stronger, this popular new fuel is bringing familiar burdens to a region long acquainted with the booms, busts and hidden costs of extractive energy industries.

This sudden abundance of natural gas positioned the fuel as a cheaper source of heat and electricity generation than coal. From 2007 to 2013, natural gas’ share of electricity generation grew by 5 percent while coal’s share dropped by 9 percent.

Natural gas has the advantage of emitting roughly half as much climate-changing carbon dioxide as coal, which also incentivized the transition to gas-fired power plants. Yet even the fuel’s climate-friendly reputation has suffered in light of new research.

Emerging Science

Methane, a potent greenhouse gas, escapes into the atmosphere at every stage of natural gas development, from drilling and processing to transportation, storage and energy generation. Over a 100-year period methane traps heat in the atmosphere at 34 times the rate of carbon dioxide, and wells drilled with new fracking techniques are more likely to leak methane than wells drilled with older technology, according to a 2014 Cornell University study that examined Marcellus Shale drilling in Pennsylvania.

Fracking is exempt from many of the country’s bedrock environmental quality laws, including the Clean Water Act and Safe Drinking Water Act, and there is no federal law requiring companies to disclose the chemicals used in fracking fluid. Some states require companies to post the chemicals they use, with the exception of trade secrets, on the website FracFocus.org. But a 2013 Harvard Law School study found significant flaws with the online forum, including the fact that the companies are responsible for determining what information is considered a trade secret and therefore exempt from disclosure.

Under Pressure

RELATED STORIES

Earlier this year, a Duke University study in West Virginia and Pennsylvania discovered high levels of two new contaminants — ammonium and iodide — in wastewater from both fracked and conventional drilling sites. Studies have also connected shale gas drilling with contamination of drinking water sources, and in August 2014, Pennsylvania’s environmental agency released information about 248 incidents where natural gas operations had damaged private water sources. Research published in September 2014 identified eight areas where groundwater was affected by fugitive gas from the drilling process and found that faulty well casings and well failure were to blame.

Water woes related to shale drilling also include the portion of wastewater that returns to the surface after a well is fracked. Underground injection to dispose of this “produced water,” along with fracking itself, is linked to earthquakes, and there are reports from across the country of drilling companies dumping toxic, sometimes radioactive, wastewater into surface waterways or spraying the contaminated water along roads to suppress dust.

A review of public health studies published in 2014 found evidence of health risks, but noted that a lack of baseline data makes it difficult to make comprehensive claims about the before-and-after effects of drilling.

Critics and advocates of fracking both claim to have science on their side — energy industry groups have criticized some academic studies and research supported by health and environmental advocacy organizations, while those organizations raise doubts about studies conducted or funded by the gas industry.

Earlier this year, the nonprofit research organization Public Accountability Initiative reviewed a list of 130 studies that the oil and gas organization Energy In Depth had used to help convince the Allegheny County government in Pennsylvania to lease the mineral rights beneath a public park for drilling. Of the 130 studies and reports cited by the drilling advocates, Public Accountability Initiative reported that only 14 percent were peer-reviewed, and 60 percent were funded or authored by industry sources.

Among the known airborne side-effects of fracking are dust and diesel emissions from truck traffic, and silica from the sand used to prop open the shale fissures. Shale extraction and processing also results in air emissions such as benzene, toluene, nitrogen oxides and smog-inducing volatile organic compounds. Exposure to these pollutants is linked to a host of short-term and long-term health issues ranging from blood disorders and cancer to neurological, respiratory and cardiovascular problems and even premature death.

Fracking Footholds

Across the East, fracking is advancing in starts and stops — as some states embrace the practice, another bans it, and still more consider the risks and potential rewards of entering the fracking fray.

Starting this spring, North Carolina can issue permits for oil and gas drilling. After years of legislative maneuvering, new drilling rules went into effect in March and ended the state’s fracking moratorium.

Between low prices for natural gas and a reported lack of interest from major oil and gas companies in the Tar Heel State’s unproven reserves — mostly in the Piedmont — onlookers expect that land speculators and wildcat drillers will be the first to test the area’s shale gas potential.

In Kentucky, the first regulations for deep well drilling became law in March. The rules update decades-old regulations that did not reflect the challenges posed by fracking, and were crafted by regulators and several representatives of the oil and gas industry and environmental groups.

Signs at a gravel lot alongside Middle Island Creek in Doddridge County, W. Va., make it clear that only water trucks from drilling company EQT are permitted to withdraw water. In West Virginia, about 5 million gallons of fluid are used for each fractured well, and 80 percent or more of that water comes directly from streams and rivers. Photo by Molly Moore.

Signs at a gravel lot alongside Middle Island Creek in Doddridge County, W. Va., make it clear that only water trucks from drilling company EQT are permitted to withdraw water. In West Virginia, about 5 million gallons of fluid are used for each fractured well, and 80 percent or more of that water comes directly from streams and rivers. Photo by Molly Moore.

Yet there were no public health officials involved, and the rules were opposed by some grassroots organizations such as Kentuckians For The Commonwealth and Frack Free Foothills, a new network of concerned residents. In a testimony before the state Senate, Madison County resident Vicki Spurlock, who received a lease proposal from a gas drilling company, unsuccessfully requested an amendment to install a two-year fracking moratorium.

Among other provisions, the law requires companies to disclose all chemicals used in the process, though the exact mixture can remain a trade secret. The rules also mandate before-and-after water quality testing for homeowners within a 1,000-foot radius of the drill site and require companies to give surface owners advance notice of drilling.

The new regulations come as interest rises in the Rogersville Shale formation, which stretches from eastern Kentucky into West Virginia. In late February, the Kentucky Oil and Gas Conservation Commission met at a well-attended hearing to consider a drilling permit for what could be the state’s first deep horizontal natural gas well.

Until recently, the high clay content in much of the state’s shale formation had limited the kind of fracking in Kentucky to a nitrogen process that uses much less water. But the Rogersville Shale, nearly two miles deep, can be accessed through high-volume hydraulic fracturing.

But North Carolina and Kentucky’s adoption of fracking doesn’t necessarily signify a larger trend. In New York, the fracas about whether and how to allow fracking is over. Gov. Cuomo banned the practice in December, citing a state review that found significant health risks associated with the drilling technique. A large swath of the Empire State sits atop the productive Marcellus Shale, and Cuomo’s decision marked the first fracking ban in a state with proven shale gas reserves.

Maryland is also grappling with the question of whether and how to permit fracking, which could occur in the state’s western region between West Virginia and Pennsylvania.

On March 25, Maryland’s House of Delegates passed a bill that would extend the state’s current moratorium on fracking — established by former Gov. Martin O’Malley in 2011 — for three more years while a state commission further studies potential health risks. The same day, the state Senate passed a bill that calls fracking an “ultrahazardous activity” and mandates that well operators carry $10 million in liability insurance for injuries and environmental and property damage. The bills are pending approval from the rest of the legislature and Gov. Larry Hogan.

“We’ve got to get this right, because if we get this wrong, it is unfixable,” Delegate Dereck Davis, a supporter of the moratorium, said during the House debate.

Frack Facts

During the fracking process, a mixture of water, sand and chemicals is sent down a deep vertical well at high pressure, following the well as it turns to run horizontally through a layer of shale. The fracking fluid then bursts through holes in the well with enough force to penetrate the tight shale and form fissures. Particles of sand in the mixture get lodged in the tiny cracks and prop them open.

With the fractures in place, the oil and gas hydrocarbons in the shale escape. Some of the toxic fracking brew also returns to the surface, but approximately 90 percent remains underground.

The natural gas is separated from the associated oil and fracking fluid, often by equipment located at the wellhead. From here, it is transported to a nearby compressor station, which facilitates the flow of gas through the web of pipelines and can also serve as a field processing station to separate the natural gas and other components recovered from the shale.

The byproducts, such as ethane, propane and butane, may go on to feed the chemical industry, while the natural gas is transported, often via pipeline, to power plants and other consumers.

Community Resistance

A suite of counties and towns across the nation — from the oil-rich community of Denton, Texas, to the college town of Athens, Ohio — are also pushing back against natural gas development through local bans and stronger regulations. In some Appalachian states, this means legal skirmishes between municipal and state governments about whether communities have the right to restrict or outlaw fracking in their area.

Athens was one of four localities nationwide to ban fracking on Election Day 2014. But the town’s resolution — passed with 78 percent of the vote — might not survive a legal challenge.

Elsewhere in Ohio, the state supreme court ruled against Munroe Falls, a small city that had required a municipal permit for oil and gas drilling. In February the court affirmed that, under Ohio law, only the Ohio Department of Natural Resources can regulate oil and gas production. A few weeks later, a county court also struck down an oil and gas drilling ban in the Cleveland suburb of Broadview Heights.

Nathan Johnson, an attorney with the Ohio Environmental Council, told the college radio station WKSU that the Munroe Falls ruling still left an open door for some types of local ordinances to limit fracking.

“Local governments, particularly cities across the state, should feel somewhat emboldened by this decision and feel strongly about crafting some ordinance language that would allow zoning — though, of course, they’d have to be careful about it, but I think they do have the hint there that they would succeed in court if they go about it properly,” he said.

In eastern Virginia’s King George County, the board of supervisors is using its zoning authority to stem the possibility of fracking before it starts. The decision came after more than 84,000 acres of mineral rights in the area were leased to a drilling company. The January 2015 decision to institute a strict permitting process for potential drilling instead of issuing an outright ban places the county on safer legal footing, since the amount of authority Virginia municipalities have to restrict fracking is unclear.

A North Carolina state law passed in 2014 preemptively invalidates any “local ordinance that prohibits or has the effect of prohibiting oil and gas exploration, development, and production activities,” but this hasn’t prevented more than 40 localities from passing resolutions or ordinances against fracking or the underground injection of fracking waste.

Susan Leading Fox, a Swain County, N.C. resident and registered member of the Eastern Band of Cherokee Indians, notes that the far western part of the state is conscious of the tourism dollar, which is tied to local water resources. She decries the state legislature’s decision to override local ordinances, which she says reflect widespread popular opinion against the practice. “I just think it’s a blatant disregard for county elders and the community at large to completely ignore and just disregard what your community wants,” Fox says.

When speculation about shale deposits in her area began, she helped organize grassroots community meetings that led to a resolution against fracking in Swain County. State law trumps the county resolution, but Fox also contributed to the Eastern Band of Cherokee Indians’ resolution that prohibits fracking on sovereign tribal lands and calls for a statewide ban.

It’s unlikely that fracking will come to the western part of the state anytime soon, due to the region’s geology and the lack of gas infrastructure. But if it does, locals will be watching, keeping an eye on drilling operations as well as the strategies and tactics used by other Appalachian communities that are feeling the pressure of the shale boom.

State Legislative Updates

Monday, April 13th, 2015 - posted by Dac Collins

While lawmakers in Washington, D.C., might get most of the spotlight, the legislators in state capitols across the region are busy making — and blocking — laws that affect Appalachia’s land, air, water and people. Here’s the latest updates from state legislatures around the region.

Kentucky

Session convened Jan. 6, adjourned March 24

Perhaps the most publicized and contentious environmental law to pass during the Bluegrass State’s 30-day legislative session was an update to existing oil and gas drilling rules that addresses some of the challenges posed by fracking.

A new energy law creates an Environmental Regulation Task Force to review how electricity reliability in the state is affected by federal environmental regulations. The task force, which environmental groups say is skewed toward industry, will produce a report by December 2015.

Gov. Beshear also signed a bill that helps local governments finance water and energy efficiency projects. A committee hearing on the Clean Energy Opportunity Act, which would require Kentucky utilities to meet a certain portion of electricity demand through energy efficiency and renewables, was cancelled due to a March snowstorm, but a hearing during the legislative interim is expected.

It will be more difficult for timber companies designated as “bad actors” to operate in the state without paying civil penalties and remediating logging sites under another new law. And new rules regarding how local governments can handle stray horses and cattle provide guidelines for identifying owners and for gelding, or sterilizing, male animals if an owner is not found. — By Molly Moore

North Carolina

Session convened Jan. 14, adjourns early July

Since the legislative session began in January, the rules regulating oil and gas drilling in North Carolina went into effect and the state’s long-standing moratorium on fracking was lifted. A bipartisan bill introduced to “disapprove” the rules was left to expire in March.

The first law passed this session clarifies technical issues with the Coal Ash Management Act passed last September and removes a previous legal requirement that the state develop rules to limit air pollution from fracking operations. A three-judge panel ruled in favor of Governor McCrory, who claims that the Coal Ash Management Commission is unconstitutional because there are more legislative appointments than executive. The ruling means that progress cleaning up coal ash throughout the state will stall. It also affects the commission that wrote the fracking rules, which could impact the validity of the drilling regulations.

The bipartisan Energy Freedom Bill, which would open up the state to third-party sales for solar projects, was introduced in March. The bill is supported by environmental groups, large businesses and the military, but strongly opposed by Duke Energy, which currently has a monopoly on the state’s power production.

Though polls show that North Carolinians overwhelmingly support renewable energy options, Gov. McCrory continues to push for opening the coast to offshore oil drilling, which is a possibility now that President Obama is allowing states to pursue offshore drilling in the Atlantic. — By Sarah Kellogg

Tennessee

Session convened Jan. 13, adjourns late April

At the end of March, a bill to transfer oversight of surface mining in Tennessee from federal to state regulators had passed through a state Senate committee and state House subcommittee. The Primacy and Reclamation Act of Tennessee would end the federal Office of Surface Mining’s 31-year term as the regulatory agency charged with ensuring that coal mining operations in the state abide by surface mining and mined-land reclamation laws. That responsibility would pass to the Tennessee Department of Environment and Conservation. In 1984, the federal agency assumed oversight of surface mining in Tennessee due to the state’s poor enforcement of environmental laws.

The Tennessee Mining Association says a return to state regulation will lead to faster approval of mining permits. Opponents of the bill argue that fees levied on coal companies to pay for the costs of administering the regulatory program would be insufficient, and leave the state bearing an added cost.

A bill to provide a general permit for noncommercial gold mining appears idle for the year; opponents were concerned the bill could damage water quality and trout populations in the Cherokee National Forest. And a bill to help finance renewable energy and energy efficiency was moving through legislative committees at press time. — By Molly Moore

Virginia

Session convened Jan. 14, adjourned Feb. 27

In the 2015 legislative session, Virginia electric utilities lobbied for what they described as a partial rate freeze, though consumer advocates said that average electric bills could still increase and the legislation would make it more difficult for regulators to catch utility over-earnings or require refunds. But amendments on the same bill declared solar energy development and energy efficiency programs as in the public interest, and the legislation passed.

Another bill would have joined Virginia into a regional network of states limiting greenhouse gas emissions. Through pollution allowance auctions, this initiative would raise funds for efforts such as coastal adaptation to sea level rise and renewable energy workforce training. The bill did not receive a vote, but this concept will likely be reintroduced next year.

Two new laws that passed will increase the size of nonresidential solar installations that can sell power back to the grid and encourage renewable energy and energy efficiency for multi-family and commercial buildings.

Meanwhile, Gov. McAuliffe reiterated his strong support for the Atlantic Coast Pipeline, one of three proposed pipelines that would, if built, carry fracked gas across ecologically sensitive areas. A bipartisan bill would have prevented interstate companies from entering and surveying private property without the written consent of the owner, but that legislation failed to pass, as did an attempt to make public service corporations using eminent domain subject to the Freedom of Information Act. — By Hannah Wiegard

West Virginia

Session convened Jan. 14, adjourned March 14

Governor Earl Ray Tomblin received criticism from mine-safety and environmental groups for signing the Coal Jobs Safety Act, a law that United Mine Workers of America President Cecil Roberts said “marks the first time in West Virginia history that our state has officially reduced safety standards for coal miners.” The legislation also prevents citizens from suing coal companies for violating Clean Water Act standards if those standards were not specified in the state mine permit, along with several other industry-supported changes to environmental rules.

The state also lowered the number of aboveground chemical storage tanks that need to comply with safety regulations by roughly 75 percent — the storage tank rules passed in the wake of the 2014 Elk River chemical spill. The legislature did agree to strengthen water quality standards for a 72-mile stretch of the Kanawha River so that it can be used as a backup drinking water source for the now-notorious Elk River intake.

A bill that would have allowed “forced pooling” for horizontal oil and gas wells narrowly failed. Forced pooling, which is currently allowed for vertical wells in the state, requires all mineral owners to lease their land for drilling if a certain percentage of other mineral owners in an drilling tract agree.

Two bills intended to expand the scope of agricultural cooperatives and make it easier for growers to sell at farmer’s markets also passed. — By Molly Moore

WV Coal Lab Penalty Upheld

Wednesday, April 8th, 2015 - posted by Dac Collins

The West Virginia Environmental Quality Board upheld a decision by the state Department of Environmental Protection to revoke the certification of Appalachian Laboratories Inc., where employees routinely conspired to violate the federal Clean Water Act.

The Beckley-based water-testing lab had previously appealed the revocation of its state certificate to conduct water testing services for coal companies and other industrial customers, arguing the actions of one employee should not disrupt its entire business. But during the Feb. 25 sentencing hearing of lab employee John Shelton — who will spend 21 months in prison for falsifying water samples — a U.S. judge said, “essentially everyone at the company… participated in some way in this conspiracy.”

Going to Court for Clean Water

Wednesday, April 8th, 2015 - posted by Dac Collins

Federal Lawsuit Filed Against Frasure Creek

In mid-March, Appalachian Voices and our partners in Kentucky sued Frasure Creek Mining in federal court for more than 20,000 violations of the Clean Water Act, which could lead to nearly $700 million in fines.

In 2014, Frasure Creek Mining submitted more than 100 reports to the Kentucky Energy and Environment Cabinet that contained false water monitoring data. These reports are supposed to be used to make sure companies are meeting the water pollution limits in their permits, but when companies turn in false reports, that task becomes impossible.

In the first quarter of 2014, nearly half of Frasure Creek’s water monitoring reports were false — they contained data copied from previous reports. In a few cases, violations were removed from reports when they were duplicated.

A few years ago, Frasure Creek was the top producer of coal from mountaintop removal mines in Kentucky. Although Frasure Creek has stopped mining coal for the time being, its mines continue to produce toxic pollution and the company continues to rack up numerous violations from the state for failing to properly reclaim the mines.

If you think all of this sounds familiar, you would be right. We first uncovered similar false reports from Frasure Creek and two other coal companies almost five years ago. The subsequent legal actions are still ongoing. Late last year, inadequate settlements between Frasure Creek and the Cabinet were thrown out by a Kentucky judge, and that decision is now being appealed. We are also attempting to intervene in the state’s enforcement action for these 2014 violations.

Appalachian Voices is joined in these efforts by Kentuckians For The Commonwealth, Kentucky Riverkeeper, the Sierra Club and the Waterkeeper Alliance. The citizens’ groups are represented by Mary Cromer of Appalachian Citizens Law Center, attorney Lauren Waterworth, and the Pace Law School Environmental Litigation Clinic.

A first for North Carolina, now open for fracking

Monday, March 23rd, 2015 - posted by sarah
Fracking rig

In the face of widespread public opposition and demand for stronger rules, fracking permits can officially be applied for in North Carolina. Photo by Bob Warhover

March 17 marked the first day in history that North Carolina has been fully open to the oil and gas industry for the dangerous, environmentally destructive practice of hydraulic fracturing for natural gas.

Despite widespread public opposition, Governor McCrory and state legislators rushed to open the state to drilling, ignoring hundreds of North Carolinians who spoke at public hearings across the state and thousands more that sent written comments requesting stronger rules.

Despite legislators’ promises that the rules would be the strongest in the country, the final package leaves much to be desired. The rules lack any provisions to control air pollution and they do not clarify legal confusion about forced pooling, the controversial process by which landowners are pooled into a drilling unit without their consent.

Adding insult to injury, on March 18, the North Carolina legislature passed its first bill since the session began in January, which declares that it is optional for the state Environmental Management Commission to create rules regulating air emissions from fracking operations. Previously, the Energy Modernization Act, which paved the way for fracking in the state, required that the EMC develop regulations to protect communities from air pollution.

North Carolina has very small shale deposits and it is unclear where they are located and how much they will actually produce. What is known is that the shale deposits in North Carolina are closer to groundwater sources than the shale deposits in other states that have already experienced groundwater contamination from failed fracking well cases. Additionally, there are no facilities in North Carolina that can treat the toxic wastewater produced by drilling and there are currently no pipelines to transport the fracked gas.

Combine North Carolina’s weak rules, unclear picture of gas reserves, and a lack of infrastructure to transport what little gas the state can produce, with dropping gas prices and drilling companies operating in the red, and you can be sure that the only drillers North Carolina is likely to attract are wildcatters.

When multi-billion dollar oil and gas companies can’t even drill safely, it seems unlikely that small-time prospectors will take every precaution to protect groundwater and neighboring communities from harm.

Though the moratorium on fracking has been lifted, communities and environmental organizations across the state are prepared to continue fighting. We’ll be watching the Department of Energy Mineral and Land Resources closely for any applications to create a drilling unit or for a drilling permit. If a permit is applied for, we’ll be ready to fight it.

Learn more about the risks of fracking and stay up to date by signing up for “Frack Updates” from Frack Free N.C.

Going to court for clean water

Tuesday, March 17th, 2015 - posted by eric
A satellite image on Google Earth, taken October 2013, of a mine in Breathitt County, Kentucky, owned by Frasure Creek Mining.

A satellite image on Google Earth, taken October 2013, of a mine in Breathitt County, Kentucky, owned by Frasure Creek Mining.

Last week, Appalachian Voices and our partners in Kentucky sued Frasure Creek Mining in federal court for more than 20,000 violations of the Clean Water Act, amounting to nearly $700 million in potential fines. (Read the press release.)

In 2013 and 2014, Frasure Creek Mining submitted more than 100 reports to the Kentucky Energy and Environment Cabinet that contained false water monitoring data. These reports are supposed to be used to make sure companies are meeting the water pollution limits in their permits, but when companies turn in false reports, that task becomes impossible.

In the first quarter of 2014, nearly half of Frasure Creek’s water monitoring reports were false. Most contained data copied from previous reports.

But what if Frasure Creek copied a report that contained violations of their pollution limits? In a few cases where the first report contained violations, the entire report is copied except for the violations.

A few years ago, Frasure Creek was the top producer of coal from mountaintop removal mines in Kentucky. It recently emerged from bankruptcy and in 2014, the company didn’t produce any coal from its 60 Kentucky mines, a fact that doesn’t seem to have affected Frasure Creek’s parent company Essar, or its billionaire owners, Shashi and Ravi Ruia. Although Frasure Creek has stopped producing coal for the time being, its mines continue to produce toxic pollution and continue to wrack up numerous violations from the state for failing to properly reclaim the mines.

Friday’s lawsuit is the next step in what has been a long fight for clean water and proper oversight in Kentucky. We first uncovered similar false reports from Frasure Creek and two other coal companies 2010, and took legal action. Frasure Creek’s earlier violations have yet to be resolved. Late last year, inadequate settlements between Frasure Creek and the Cabinet were thrown out by a Kentucky judge, and that decision is now being appealed.

Appalachian Voices is joined in these efforts by Kentuckians For The Commonwealth, Kentucky Riverkeeper, the Sierra Club and the Waterkeeper Alliance. The citizens’ groups are represented by Mary Cromer of Appalachian Citizens Law Center, attorney Lauren Waterworth, and the Pace Law School Environmental Litigation Clinic.

Read past posts about our clean water lawsuits in Kentucky.

Permits and Payments: Will Duke Energy ever stop polluting?

Friday, March 13th, 2015 - posted by sarah
The N.C. Department of Environment and Natural Resources announced a record-high $25 million fine for pollution at Duke Energy's Sutton plant. The agency also updated coal ash permits to at other sites to protect the company. Photo from Duke Energy Flickr.

The N.C. Department of Environment and Natural Resources announced a record-high $25 million fine for pollution at Duke Energy’s Sutton plant (above). The agency also updated coal ash permits at other sites to monitor pollution — and protect the company. Photo from Duke Energy Flickr.

This week, Duke Energy and the N.C. Department of Environment and Natural Resources added a new chapter to the coal ash saga.

On the heels of recent news that Duke Energy agreed to pay $102 million to resolve the federal charges for the company’s criminally negligent handling of coal ash at four out of 14 of its coal plants in North Carolina, DENR announced Tuesday that it is charging Duke Energy $25.1 million for coal ash pollution at the Sutton power plant near Wilmington.

$25.1 million is the largest fine DENR has ever issued, and though the fine is substantial, it’s long overdue and does nothing to remedy the pollution problems that persist at the Sutton site (not to mention Duke’s 13 other sites). For a company that made $1.9 billion in profits last year, $25 million isn’t breaking the bank, but it is making a statement. Which raises the question, is it just a statement, or is it a precursor to Duke finally cleaning up its coal ash across North Carolina?

A few days prior to DENR’s announcement of the fine, the agency released updated permit drafts, proposed to “better protect water quality near coal ash ponds until closure plans are approved.” Sounds good, right? Unfortunately, that’s the best part about the permit rewrites, they sound good.

Unpermitted leaks and seeps at Duke’s coal ash ponds that led to the criminal charges filed last month, will now be permitted as legal discharges. Though permitting the pollution will force monitoring, it does nothing to stop or even stymie the toxic discharges.

North Carolina, like the rest of the country, has very few limits on the amount of pollution power plants can discharge directly into our waterways. In fact, the federal rules regulating direct discharges from power plants have not been updated in 32 years, and those rules allow unlimited discharges of many of the toxic constituents in coal ash pollution, including mercury, arsenic, lead, and selenium. By rewriting Duke’s permits, DENR is resolving violations of the Clean Water Act, not by stopping the illegal discharges, but by issuing permits for them.

Accompanying the new permits and record-high payments are vague promises from both DENR and Duke Energy that the coal ash will be cleaned up eventually. Though the state’s coal ash law requires closure plans for all sites by the end of 2016, if a site is categorized as low priority, Duke will be allowed to simply “cap-in-place” its coal ash. “Cap-in-place” is a questionable practice that comes with the risk of continued contamination from ponds near waterways or sitting in groundwater. For the 10 communities that have yet to be categorized as low, medium, or high priority, this is a huge concern.

It appears that Duke Energy is working hard to clean up its image and settle the numerous lawsuits it faces. On Tuesday, the company announced that it would pay $146 million to settle a lawsuit related to the company’s 2012 merger with Progress Energy. Once again, the sum is substantial in comparison to similar settlement agreements, indicating that Duke Energy’s deceit was substantial in this case as well.

Both DENR and Duke Energy want North Carolinians to believe they are doing the right thing. Only time will tell if the company will uphold its vague promises and stop polluting North Carolina communities and their drinking water with coal ash.

Apologies for the Dan River spill, guilt for coal ash crimes

Thursday, February 26th, 2015 - posted by brian
Facing federal criminal charges stemming from the Dan River spill and pollution at other sites across North Carolina, Duke will pay for its coal ash crimes.

Facing federal criminal charges stemming from the Dan River spill and pollution at other sites across North Carolina, Duke will pay for its coal ash crimes.

Duke Energy likes to use a tagline that goes something like “For more than 100 years we’ve been providing customers with reliable, affordable electricity at the flip of a switch.”

It’s boilerplate, but it works. So I doubt the company will amend that punchy bit of self-praise to include “and we were recently found criminally negligent for polluting North Carolina rivers with coal ash.”

Even so, a year after the Dan River spill, Duke seems to understand that coal ash pollution has its own chapter in the company’s corporate story. Now, Duke will pay for its crimes.

The bombshell news came in two pieces around the same time last Friday; the U.S. Department of Justice announced the charges and Duke announced it struck a deal with prosecutors. A few days before the big reveal, Duke told shareholders in an earnings report that it set aside $100 million to resolve the federal investigation that began after the Dan River spill.

The company faces nine misdemeanor charges for violating the federal Clean Water Act at multiple coal ash sites across the state. On Friday, the U.S. Attorney’s Offices for the Western, Middle and Eastern Districts of North Carolina each filed charges in their respective federal courts, related to violations that occurred at coal ash ponds owned by Duke in their respective districts.

According to DOJ, Duke was criminally negligent in discharging coal ash and coal ash wastewater from storage ponds its Dan River, Asheville, Lee, and Riverbend plants into North Carolina rivers. Violations related to equipment upkeep were found at the Cape Fear Steam Station, where Duke was cited by the state for illegally pumping 61 million gallons of toxic water from a coal ash pit into the Cape Fear River last year.

The DOJ’s press release makes clear that the filing of charges is not a finding of guilt, and most prominent news outlets left any indication that Duke is guilty of its coal ash crimes out of their coverage. We decided to use the word “guilty” in our press release largely because a proposed plea agreement including millions in fines had been reached.

Read one of the three criminal "bills of information" detailing charges against Duke Energy (PDF).

Read one of the three criminal “bills of information” detailing charges against Duke Energy (PDF).

Also, in a consent to transfer the plea and sentencing proceedings to the Eastern District court, an attorney for Duke wrote: “… the Defendants wish to plead guilty to the offenses charged.”

Of course, Duke steered clear from the words “guilty” or “plea” in its own announcement. But, as the Southern Environmental Law Center’s Frank Holleman told the Charlotte Observer, “When anyone pays $100 million to resolve a grand jury investigation, that indicates something serious happened.”

There’s still a lot of specifics we don’t know about the agreement between prosecutors and Duke. Prosecutors say they won’t comment until after court proceedings where the agreement must be approved by a federal judge.

It’s important to note, though, that this is a plea bargain to resolve a criminal investigation, not a settlement to avoid a civil trial. The proposed agreement includes $68.2 million in fines and restitution and $34 million for community service and mitigation. The fines cannot be passed on to customers, meaning Duke’s shareholders will take the hit.

Importantly, the agreement would also put Duke on probation for five years, during which a court-appointed monitor would ensure compliance with provisions related to training, audits and reporting. According to Duke, the full agreement will be made public if it is accepted by the court.

“We are sorry for the Dan River spill, and remain grateful to our friends and neighbors for your support,” Duke CEO Lynn Good said in a statement. “We are committed to moving forward in a safe and responsible way.”

For a year Duke has been saying sorry to its customers and communities along the Dan River — basically demanding that it be held to a higher standard. So even though the company is no longer in crisis mode, it’s still watching its back as it tries to repair its reputation and move beyond the spill.

The problem of coal ash pollution in North Carolina is far from resolved. According to Duke’s own assessment, 200 seeps at its power plants leak nearly 3 million gallons of polluted water into streams and rivers every year. Just yesterday, Duke was cited for contaminating groundwater at its Asheville Plant.

In addition to investigating Duke Energy, federal prosecutors subpoenaed current and former employees of the Department of Environment and Natural Resources and the North Carolina Utilities Commission, which used to regulate coal ash ponds. But none of the charges against Duke allege any improper, or illegal, dealings between the company and state regulators.

Without clarification from the U.S. Attorney’s office, it’s unclear whether the grand jury has finished its work, only finding Duke in the wrong, or if an investigation into actions of DENR is ongoing.

“While prosecutors aren’t legally obliged to explain charges they don’t file, in this case the public needs more substantial disclosures,” the Fayetteville Observer wrote in an editorial. “The Justice Department needs to let us know whether a cloud of suspicion remains over DENR.”

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Déjà vu in Kentucky clean water cases

Monday, February 23rd, 2015 - posted by eric

frasure_creek

Appalachian Voices and our partners have filed a motion to intervene in a case between the Kentucky Energy and Environment Cabinet and Frasure Creek Mining to ensure clean water laws are being enforced in Kentucky.

Late last year we filed a 60-day Notice of Intent to Sue against Frasure Creek after we uncovered thousands of false water monitoring reports the company turned into the state.

The Kentucky cabinet was unaware of these false submissions and responded by filing an administrative complaint against Frasure Creek covering all of the false data we found, a common tactic for state agencies to prevent citizen involvement in this type of case. Now, we are filing a motion to become parties to the cabinet’s enforcement action.

To anyone following our lawsuits against Frasure Creek, these recent developments will sound familiar. This isn’t the first time we’ve caught the company turning in false water monitoring reports. Frasure Creek was one of three Kentucky coal companies we filed legal actions against in 2010 and 2011 for submitting falsified pollution reports that were concealing water quality violations.

In all of those cases the cabinet stepped in with slap-on-the-wrist settlements, compelling us to intervene in cases where we had brought the violations to light. The only difference in this case is that Frasure Creek and the cabinet have yet to reach a settlement, so we haven’t seen how lax the enforcement will be this time around.

Both of the cabinet’s previous settlements with Frasure Creek were thrown out by Franklin Circuit Court Judge Phillip Shepherd last December. In a scathing opinion, Shepherd stated that 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.”

Judge Shepherd’s rulings are being appealed by the cabinet (think about that, the state agency, not Frasure Creek, is asking for an appeal). But we are hoping that this time around the cabinet will take us seriously, and won’t reach a weak settlement or resort to legal run-arounds to prevent citizen involvement. After all aren’t our state agencies supposed to be accountable to the people, not to the corporations they are supposed to regulate?

Appalachian Voices is joined in these efforts by Kentuckians For The Commonwealth, Kentucky Riverkeeper, the Sierra Club and the Waterkeeper Alliance. The citizens’ groups are represented by Mary Cromer of Appalachian Citizens Law Center, attorney Lauren Waterworth, and the Pace Law School Environmental Litigation Clinic.

Read past posts about our clean water lawsuits in Kentucky. Subscribe to the Front Porch Blog to receive regular updates.