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DEP Pushes an Inadequate Water Quality Standard

Posted on by Kate Asquith

For Immediate Release
August 26, 2015

Contact
Ben Luckett, Staff Attorney, Appalachian Mountain Advocates
304.382.4798
bluckett@appalmad.org

DEP Pushes an Inadequate Water Quality Standard that would Endanger WV Fishing

CHARLESTON, WV — The West Virginia Department of Environmental Protection (“DEP”) presented proposed changes to water quality standards at the Water Quality Standards Program quarterly meeting on Tuesday. Despite objections from the public and West Virginia-based conservation groups, DEP has continued to promote a selenium standard that could endanger recreational and commercial fishing throughout West Virginia.

DEP is required under federal law to adopt updated water quality standards every three years. The agency recently proposed weakening the state standard for selenium, a metal that leaches from surface mining waste into waterways in unnaturally high concentrations. DEP has proposed a new standard based on concentrations in fish tissue rather than the water column, mimicking a regulation recently enacted in Kentucky.

In fish, selenium causes infertility, as well as deformities like crooked spines and damaged gills. Selenium builds up in the body over time, so even small amounts in the water can accumulate exponentially in fish and other wildlife further up the food chain.

Many large sport fish, like certain bluegill and catfish, are particularly sensitive to selenium, with negative impacts seen at lower concentrations. But DEP’s proposal is geared toward the average, threatening these important fish with serious decline. Nor does DEP account for other wildlife that depend on healthy fish and clean water.

Fish with high levels of selenium accumulation can also pose a danger to humans if eaten in excess quantities. High-level exposure to selenium can damage the kidneys, liver, and central nervous and circulatory systems. The federal Environmental Protection Agency has warned that people who drink water containing high levels of selenium could experience hair or fingernail losses, numbness in fingers or toes, or problems with their circulation.

“Serious questions also remain as to how DEP could even enforce the proposed standard,” explains Ben Luckett, Staff Attorney for Appalachian Mountain Advocates. The proposal has been touted as regulatory relief by the mining industry.

Luckett recommends DEP instead continue to rely on an easily measurable concentration of selenium in the water column. Such a standard is endorsed by top scientists and the federal government.

DEP is expected seek legislative approval of the proposed rule this winter.

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Appalachian Mountain Advocates is a West Virginia nonprofit using the power of the law to protect the economy and environment of our state. Founded in 2001, Appalmad’s team of legal and policy experts represent a wide range of partner groups on issues of energy, water quality, forests, and land use.

Visit: www.appalmad.org

Posted in Coal, Mountaintop Removal, Press Release, Water Quality | No comments »

Obama proposes crack-down on fracking emissions

Posted on by Dan Radmacher

In a promising step, the U.S. Environmental Protection Agency proposed rules to cut methane emissions from the oil and gas drilling industry by up to 45 percent of 2012 levels over the next decade.

Methane is a potent greenhouse gas that traps 25 times as much heat as carbon dioxide. The oil and gas industry is the largest emitter of methane, with most emissions coming from out-dated facilities where natural gas is consolidated from nearby hydraulic fracturing (fracking) operations for distribution through pipelines — such as the controversial proposed Mountain Valley and Atlantic Coast pipelines.

A study released Tuesday found such leaks were responsible for a much larger amount of methane release than previously thought — enough to heat 3.2 million homes a year.

The revelation of these damaging emissions raises further concerns about the long-term devastating impacts fracking operations wreak on air quality, drinking water and nearby communities. The study underscores that many of the effects of these fracking operations are simply unknown.

Though the transition from coal toward natural gas has been viewed by some as a helpful step in reducing greenhouse gas emissions, it’s becoming increasingly clear that fracked  natural gas is far from an ideal energy solution for Appalachia or the rest of the word.

The proposed rules will require companies to monitor and curb methane leaks from all new wells and equipment, but the standards are only voluntary for existing operations.

We’ll continue to examine the proposed rules closely to determine how much good they will do, and how they can be improved — as well as whether they will help in our efforts to fight the Mountain Valley Pipeline, the Atlantic Coast Pipeline and other projects proposed for our region.

Posted in Air Quality, Climate Change, Natural Gas, Pipelines | No comments »

Federal judge rules against Fola in conductivity case

Posted on by Dan Radmacher

Lawyers from Appalachian Mountain Advocates prevailed in a case against Fola Coal Company, a subsidiary of CONSOL Energy. Chief U.S. District Judge Robert C. Chambers ruled that Fola was liable for damage to two West Virginia streams caused by pollution discharges from its mining operations.

The decision marks another step forward in Appalmad’s fight to improve water quality in Appalachia.

The ruling once more confirmed the link between surface mining and biological impairment of streams and the validity of using electrical conductivity as a key measure of stream health.

Chambers noted that no peer-reviewed scientific article disputed that link. “Through myriad lines of evidence, researchers have reached the same general causation conclusion, without a single peer-reviewed publication reporting contrary findings,” Chambers wrote.

Appalmad represented the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and the Sierra Club in the lawsuit.

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WV judge bars pipeline surveyors from private property

Posted on by Dan Radmacher

Appalachian Mountain Advocates scored a critical victory yesterday when a West Virginia judge ruled that the proposed Mountain Valley Pipeline is not for public use under West Virginia law and that the pipeline company cannot use a state statute to survey private property without the owner’s permission.

Monroe County Circuit Court Judge Robert Irons issued the injunction in front of a packed courtroom, which erupted with cheers and applause.

The property owners in the case were represented pro bono by Appalmad lawyers.

In court, Appalmad Senior Attorney Derek Teaney argued that little, if any, of the gas transported by the proposed pipeline would ever benefit West Virginia customers.

“The gas is not going to be used by West Virginians along most of the pipeline,” Teaney told the judge. “There’s no public use in Monroe County.”

Appalachian Mountain Advocates has offered to represent pro bono the property owners along the pipeline route who want to challenge the state law. We are also representing Virginia property owners challenging the constitutionality of the Virginia law that pipeline officials claim allows  surveying without permission from property owners.

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Verdict in Fola lawsuit confirms harm from conductivity

Posted on by Dan Radmacher

In late January, U.S. Circuit Judge Robert Chambers once more found that high conductivity levels resulting from pollution flowing from mountaintop removal mining operations harm the biological integrity of streams and violate water quality standards.

On Jan. 27, Chambers ruled that Fola Coal Co., a unit of Consol Energy Inc., had violated its National Pollutant Discharge Elimination System permit by discharging high amounts of ionic pollution — salts and total dissolved solids — into the Stillhouse Branch.

“The water chemistry of this stream has been dramatically altered, containing levels of ionic salts — measured as conductivity — which are scientifically proven to be seriously detrimental to aquatic life,” Chambers wrote in the ruling.

The high levels of conductivity significantly impacted life in the stream.

“As key ingredients to West Virginia’s once-abundant clean water, the upper reaches of West Virginia’s complex network of flowing streams provide critical attributes — ‘functions,’ in ecological science — that support the downstream water quality relied upon by West Virginians for drinking water, fishing and recreation and important economic uses,” Chambers wrote.

Appalachian Mountain Advocates brought this lawsuit on behalf of the Sierra Club, the Ohio Valley Environmental Coalition and West Virginia Highlands Conservancy. This verdict echoes another ruling in June 2014 that found Alpha Natural Resources responsible for conductivity pollution near its mines. The U.S. 4th Circuit Court of Appeals denied an interlocutory appeal to that ruling, leading to a settlement in which Alpha agreed to clean up the streams.

Posted in Mountaintop Removal, Our Cases, Water Quality | No comments »

Selenium settlements resolve multiple lawsuits

Posted on by Dan Radmacher

On Dec. 19, 2014, Appalachian Mountain Advocates announced three settlements with Central Appalachian coal companies that will require the companies to treat unlawful selenium discharges into West Virginia’s waters, to contribute hundreds of thousands of dollars to efforts to protect West Virginia’s streams and riparian areas, and to pay civil fines to the U.S. Treasury.

The settlements resolve multiple citizen suits under the U.S. Clean Water Act and Surface Mining Control and Reclamation Act. The suits were brought by the Sierra Club, the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, and Coal River Mountain Watch, represented by Appalmad.

In each case, the U.S. District Court for the Southern District of West Virginia had held the coal companies liable for violating federal environmental law for discharging selenium — a toxic pollutant that causes deformity and death in aquatic species — in concentrations that caused violations of water quality standards. After the court held the companies liable, they agreed to treat their discharges.

The cases involved two subsidiaries of CONSOL Energy, Inc. (Fola Coal Company, LLC, and CONSOL of Kentucky, Inc.) and seven subsidiaries of Alpha Natural Resources (Alex Energy, Inc.; Aracoma Coal Company, Inc.; Bandmill Coal Corporation; Highland Mining Company; Independence Coal Company, Inc.; Kanawha Energy Company; and Marfork Coal Company).

The settlements will require the companies to treat selenium from 14 discharge points in Mingo, Clay, Raleigh, Logan, Boone, Kanawha, and Nicholas Counties — including the Brushy Fork Slurry Impoundment. Additionally, the settlements require the coal companies to contribute a total of $778,500 to the West Virginia Land Trust for special environmental projects and to pay a civil fine of $86,500.

Appalachian Mountain Advocates has been prosecuting these companies for the violations at issue since 2012.  These cases were precedent setting because they established that polluters in West Virginia could be held liable for violating water quality standards even if their Clean Water Act permits did not place specific numeric limits on a particular pollutant.

Posted in Coal, Mountaintop Removal, Our Cases, Water Quality | No comments »

Conductivity settlement to have huge impact

Posted on by Dan Radmacher
Photo courtesy of Vivian Stockman / ohvec.org Flyover courtesy Southings.org An aerial view of Hobet 51.

Photo courtesy of Vivian Stockman / ohvec.org
Flyover courtesy Southings.org
An aerial view of Hobet 21.

A settlement agreement has been reached between a group of environmental groups and Alpha Natural Resources over the company’s pollution from mountaintop removal mining operations.

The West Virginia Highlands Conservancy, the Ohio Valley Environmental Coalition and Sierra Club — represented by Appalachian Mountain Advocates and Public Justice — settled a lawsuit challenging Alpha’s violation of narrative water quality standards.   Narrative water quality standards don’t place numeric limits on pollutants, but instead require pollution to remain below a level that would impair a stream’s aquatic ecosystem.

Last summer, Alpha lost a similar case, in a ruling by U.S. District Judge Robert C. Chambers that found that conductivity pollution from mountaintop removal mining caused damage to streams in Southern West Virginia.

Conductivity measures the ability of water to transmit electricity, making it a measure of the level of ionic pollution in a stream. As Chambers wrote, high conductivity not only alters the chemistry of a stream, but results in a stream that is “unquestionably biologically impaired, in violation of West Virginia’s narrative water quality standards.”

The 4th U.S. Circuit Court of Appeals rejected Alpha’s appeal of that ruling.

Under the settlement with Alpha, the company will have to try to improve the health of the streams affected by the conductivity pollution. In the likely event those actions don’t work, the company will have to treat the water to get conductivity to a level the U.S. Environmental Protection Agency believes is not harmful to aquatic life.

Such treatment can be enormously expensive.

Days before this settlement was announced, Patriot Coal was sent notice that the same groups intended to sue over similar issues at Hobet 21, West Virginia’s largest surface mine. Almost every outfall in that huge complex is discharging water with high conductivity levels.

The scientific and legal theories developed by these cases could have an enormous impact. Practically every valley fill across Central Appalachia may be discharging water with high enough conductivity levels to impair aquatic life.

Restoring the biological integrity of all the impacted streams will be incredibly expensive. The coal companies and other entities that have profited from this mining should pay the cost of cleaning up the pollution.

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EPA needs to take over pollution programs

Posted on by Dan Radmacher

Appalachian Mountain Advocates, Sierra Club, Appalachian Voices and a number of state and regional environmental groups have joined together to petition the U.S. Environmental Protection Agency to acknowledge the failure of several Appalachian states to administer and enforce the National Pollutant Discharge Elimination System (NPDES) program.

The petitions ask EPA to withdraw the authorization of these states to run their own NPDES programs and take over enforcement of this vital program.

The groups filed petitions in West Virginia, Kentucky and Virginia. In early January, the groups filed suit against EPA for failing to intervene in West Virginia and Kentucky.

West Virginia
In West Virginia, Appalmad, Appalachian Voices and Sierra Club were joined by the West Virginia Highlands Conservancy and the Ohio Valley Environment Coalition in their petition to the EPA.

The petition highlights the many failures of the West Virginia Department of Environmental Protection to administer its NPDES program. WVDEP routinely issues permits for mining operations that are likely to cause or contribute to violations of the state’s water quality standards of pollutants that don’t have numeric standards. These permits lead directly to damaged streams that suffer biological harm from the pollution.

In addition, WVDEP has failed to issue permits for point-source discharges at abandoned mine land sites or at sites previously permitted by the West Virginia Surface Mining and Reclamation Act that have had their permits and bonds released.

Though these sites continue to produce polluted mine drainage in violation of water quality standards, DEP routinely releases bonds and permits, allowing hundreds of unpermitted discharges from valley fills across the state.

The agency is also issuing illegal permits to itself for point-source discharges at bond-forfeiture sites it is responsible for. These permits do not contain effluent limits on total dissolved solids, sulfates and conductivity that would ensure the state’s water quality standards are not violated.

This is the second time since 2009 that EPA has been petitioned to take over West Virginia’s NPDES program.

Kentucky
In 2010, Appalachian Mountain Advocates, Sierra Club, Kentuckians for the Commonwealth and Public Justice petitioned to have EPA take over Kentucky’s NPDES program, noting that the Kentucky Division of Water (KDOW) had failed to develop protective water quality standards, assure adequate assessment of the current condition of the state’s waters, comply with EPA guidelines on the development of Total Maximum Daily Load (TMDL) programs and issue permits with effluent limits that would protect Kentucky’s waters.

Recently, Sierra Club, Appalachian Mountain Advocates and Appalachian Mountain Advocates submitted another petition to the EPA, citing Kentucky’s changed in its selenium standard from a water-based limit to a fish tissue-based limit. EPA allowed the change on the condition that permits would be considered in violation if the prior water-based limits were exceeded and insufficient fish samples could be obtained. That is not, though, how the standard works. Instead, KDOW allows samplers have been instructed to keep moving down the receiving stream until enough fish tissue is obtained, even if that means going into the next receiving stream. KDOW’s approach allows fish to be completely eliminated from a direct receiving stream without finding any violation.

Kentucky, like West Virginia, has failed to issue NPDES permits for point-source discharges from bond-released sites. It has also authorized discharges from abandoned mine lands under a general permit that includes no enforceable pollution limits.

Virginia
In Virginia, Southern Appalachian Mountain Stewards joined the petition asking EPA to take over the NPDES program from the Virginia Department of Mines, Minerals and Energy (DMME), the Virginia Department of Environmental Quality and the State Water Control Board.

Virginia’s issues are numerous. It routinely approves incomplete permit applications. It doesn’t consider existing water quality when reissuing permits. It uses “best management practices” instead of numeric effluent limits to address point-source pollution from active mining operations in watersheds that are supposed to be protected by Total Maximum Daily Load limits.

Finally, Virginia actually entered into a settlement agreement with the Virginia Mining Issues Group in which Virginia’s regulatory agencies promised they would take no action when permittees exceed their TMDL wasteload allocations.

Virginia’s failure is easy to document. In the coalfield counties, streams under DMME’s TMDL protection continue to be impaired, some even after a decade of TMDL protection.

In West Virginia, Kentucky and Virginia, state regulators have failed in their duty to enforce the Clean Water Act. By law, EPA should rescind authorization for all three states and take over their programs.

Posted in Coal, Mountaintop Removal, Partners, Water Quality | 1 Comment »

Judge agrees that conductivity pollution hurts streams

Posted on by Dan Radmacher

Appalachian Mountain Advocates has been pursuing a number of legal cases designed to show that mining operations that cause high levels of conductivity downstream are violating water quality standards — and their National Pollutant Discharge Elimination System permits.

That legal theory won important validation in a ruling last summer by U.S. District Judge Robert C. Chambers.

In a case brought by Appalmad on behalf of the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy and Sierra Club, Chambers found that conductivity pollution from mountaintop removal mining caused damage to streams in Southern West Virginia.

Conductivity measures the ability of water to transmit electricity, making it a measure of the level of ionic pollution in a stream. As Chambers wrote, high conductivity not only alters the chemistry of a stream, but results in a stream that is “unquestionably biologically impaired, in violation of West Virginia’s narrative water quality standards.”

Narrative water quality standards don’t place numeric limits on pollutants, but instead require pollution to remain below a level that would impair a stream’s aquatic ecosystem.

The lawsuit targeted mines operated by Alpha Natural Resources in Boone and Nicholas counties in West Virginia. Appalmad presented extensive scientific evidence backing the case, including the testimony of Dr. Margaret Palmer, a respected scientist who has been studying conductivity and other pollution issues for years.

Chambers’ ruling established Alpha’s liability for the pollution. The next stage will determine what Alpha must do to fix the problem. There are different treatment methods that could be used to filter out the ionic pollution, all of them quite expensive.

As with the many selenium cases Appalmad has brought against coal companies, the expensive treatment coal companies must undertake represent huge savings to state taxpayers, who would otherwise be stuck with the tab. Appalmad’s selenium cases helped convince Patriot Coal to get out of the mountaintop removal mining business.

The conductivity cases may have an even broader impact. Selenium pollution depends on geologic factors — it’s worse in some places than others. Conductivity pollution, on the other hand, appears to occur at some level any time a valley fill is constructed or a lot of spoil material at a mine site is exposed to water.

Posted in Coal, Mountaintop Removal, Our Cases, Water Quality | No comments »

Absentee ownership holds Appalachia back

Posted on by Dan Radmacher

No other single factor has done more to hold Appalachia back economically than the huge percentage of land in the region owned by absentee landholding companies.

In 1974, Tom Miller, a reporter for the Huntington Herald-Dispatch, wrote a striking series entitled, “Who Owns West Virginia?” Through painstaking research, Miller found that two-thirds of the state was owned by large, absentee land-holding companies.

Miller found that two dozen out-of-state corporations and land companies, all with ties to mineral industries, own a third of West Virginia’s privately held land. In 27 West Virginia counties, absentee land-holding companies own more than half the land. An ownership study in the 1980s found the same pattern across central Appalachia. For instance, in Marin County, Kentucky, one company owned one-third of the surface area and more than half of the mineral rights. There’s no reason to believe that this pattern has changed across central Appalachia.

These corporations have very little connection to the region — when Miller wrote his series in 1974, only two West Virginians served on the boards of directors of the 10 companies that held title to half of the state’s land. Sweetheart deals with counties combined with rigged state systems for mineral reserve valuation guaranteed low assessments — and minuscule taxes — on the land.

The concentration of ownership has not been good for the citizens of central Appalachia, or its political system. As historian John Alexander Williams said, the state’s leaders “were content with their roles and their profits as middlemen for the absentee owners of the state’s natural wealth.”

Academics who have studied the issue have found that regions with large tracts of corporate holdings tend to have high unemployment and low standards of living. Natural resource wealth is bled from Appalachia with little gain returned to its citizens. Central Appalachia is essentially a corporate colony.

Many of the issues plaguing the region today can be traced back to this factor.

Low tax revenue from the huge tracts of unimproved land lead to poor government services, including inadequate education and the lack of public water and sewage systems. Economic development is hindered because companies interested only in exploiting mineral or timber resources lock up huge tracts of land. Because unimproved land is taxed at a fraction of the cost of developed land, it’s actually in these companies’ interests not to develop the land and simply wait for the resources to be extracted.

We worked with a client a few years back in Logan County. A coal company wanted to put in a mine face on his property. He agreed, and all he wanted was for the coal company to find him an equivalent acre of land elsewhere in the county. That turned out to be so difficult that the coal company had to pay $350,000 for a single acre. That’s closer to what land should cost in downtown Chicago or Boston, not rural Appalachia.

Affordable housing is also difficult to come by because so little land is left in citizens’ hands.

How this came to be is a long, complicated story with roots tracing back to pre-revolutionary days when the colony of Virginia offered land to those who explored its western reaches. After the Revolutionary War, western land was offered as pensions to war veterans. Speculators purchased these grants from veterans to compile large holdings. There were overlapping claims and confusion, especially as pre-Civil War settlers made their own claims.

Absentee owners had more political power and legal acumen than the farmers and other settlers and were better able to defend their claims. The land companies used other methods, as well, to amass large holdings. Many Appalachian residents have stories of grandparents in remote hollows who were persuaded by land agents to sign over mineral rights for a fraction of their worth.

Absentee ownership is a primary reason that central Appalachia, despite its abundant mineral wealth, remains one of the poorest regions in the nation.

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