Last night (February 15) the Boone Town Council passed strict new regulations aimed to limit the impacts of coal tar based asphalt sealants.

Coal tar based asphalt sealants are terrible for the environment and have serious human health effects because they are a major source of polycyclic aromatic hydrocarbons (PAHs). If you have ever stood in a parking lot that is really black, that is coal tar asphalt sealant, and if it smelled like tar or weird chemicals, those are the PAHs. There is really no reason to use this type of sealant, because asphalt based sealants are the same price and are far less toxic.

Although, the regulations do not outright ban the use of coal tar sealants, they do make it much more difficult. The regulations set up a permitting process, for anyone wishing to apply a pavement sealant. There will be a minimal fee for non coal tar based sealants, and a much higher fee for coal tar sealants. The permitting process is designed to allow for education on pavement sealants, and to ensure that sealants are applied in a safe manner (like when there is no chance of rain). The new permitting process will be implemented April 1, to allow for time to develop education materials and finalize the fee structure.

These new regulations are in response to the Hodges Creek fish kill. This past summer the BB&T on Highway 105 in Boone applied coal tar based asphalt sealant to their parking lot in the rain. The sealant washed off into Hodges Creek, killing all life in the creek until its confluence with Boone Creek, near the mall, 1.5 miles downstream. Shea Tuberty of Appalachian State told the town council that he had done sampling in Hodges Creek in January, little life has returned to the Creek, six months after the spill.

Thanks to everyone who came out to the town council to stand up for clean streams!

In a precedent setting move today, Judge Phillip Shepherd granted intervention to Appalachian Voices, KFTC, the Kentucky Riverkeeper and Waterkeeper Alliance in the Kentucky Energy and Environment Cabinet’s Case against International Coal Group (ICG) and Frasure Creek Mining.

The case in which we are intervening is one brought by the Kentucky Energy and Environment Cabinet in response to a 60 day Notice of Intent to Sue we filed back in October 2010. Our case alleged 20,000 violations of the Clean Water Act and had maximum fines for the companies of $740 million, while the Cabinet’s case was essentially a slap on the wrist that would prevent us from filing our federal case.

The Appalachian Voices Water Watch team is thrilled beyond measure that Judge Shepherd gave us the green light to use the tools of discovery and deposition to gather more information and go after these law breaking coal companies. Unlike the state of Kentucky, we will put the pedal to the metal until the truth is revealed and justice prevails.

Judge Phillips summed up the key reasons for granting the intervention as follows:

“The Intervenors, representing the very citizens and interested environmental groups who brought these violations to light through their own expenditure of a massive amount of time and effort to research the public records of the Cabinet, have come forward with good faith allegations that the consent decree is inadequate to protect the public interest.”

“The Cabinet, by its own admission, has ignored these admitted violations for years. The citizens who brought these violations to light through their own efforts have the legal right to be heard when the Cabinet seeks judicial approval of a resolution of the environmental violations that were exposed through the efforts of these citizens. In these circumstances, it would be an abuse of discretion to deny those citizens and environmental groups the right to participate in this action, and to test the provisions of the consent decree against the applicable legal standard of whether the consent decree is “fair, adequate, and reasonable, as well as consistent with the public interest.”

Finally, we would like to thank everyone who wrote letters in support of our intervention. We couldn’t have done it without you.

Click here to see the judge’s orders.

Click here for more background on the case.

Last Thursday there was a hearing to decide if we would be allowed to intervene in the interest of clean water in a case between the state of Kentucky and ICG and Frasure Creek Mining. The case was brought about by our investigation that found 20,000 violations of the clean water act. The judge heard arguments from all parties and now we are just waiting to hear what he decides.

For a bit more information on the story check out these articles from:

The Lexington Herald Leader

The Daily Independent

The Institute for Southern Studies

The Huffington Post

Welcome to the biggest fight of 2011! In one corner, Appalachian Voices’ Water Watch team stands poised and ready to fight for clean water. In the other corner, Big Coal tries to defend their polluting ways. The next round of the showdown will begin on Thursday, January 27 at 1:30 pm in a Kentucky courtroom. Who will come out on top?

Here is the pre-match rundown:

In October, Appalachian Voices – in partnership with Kentuckians for the Commonwealth (KFTC), the Kentucky Riverkeeper, Waterkeeper Alliance and The Appalachian Citizens’ Law Center – filed a 60-day notice of intent to sue under the Clean Water Act. The contenders were two of the largest coal mining companies in Kentucky: Frasure Creek Mining and International Coal Group (ICG). We found dozens of instances where these companies were falsifying water quality monitoring data; in many cases they had simply cut and pasted all their data from one monitoring period to the next, amounting to 20,000 violations of the Clean Water Act.

At the end of the 60-day notice period, the coal companies chickened out. They refused to face us in federal court, opting instead to run to the State for cover. Rather than remaining a neutral referee in the fight – or staying out of it all together – the Kentucky Energy and Environment Cabinet is trying to shield the coal companies by cutting a deal in state court.

Instead of having a fair fight with the lawbreaking coal companies, we are now forced to contend with the Cabinet as well. If you’re a coal company, why stand and fight fairly when you can run a hide behind your protectors in state government?

In an attempt to preempt and prevent our lawsuit from going forward, the Kentucky Energy and Environment Cabinet proposed a settlement that gives the two coal companies a slap on the wrist fine of $660,000, which is less than 0.1% of the maximum penalty of $740 million that we sought! We have asked the court to allow us to intervene in the Cabinet’s case against the polluters. Although the companies and the Cabinet reached an agreement, the Judge did not immediately approve the settlement; he ordered the Cabinet to give the public the chance to comment on its adequacy.

And boy did the public have a lot to say. Thank you to 300 Kentuckians who sent individual letters or signed on to KFTC’s letter asking for full prosecution and greater protection for clean water.

Last week, we took some major swings at both our opponents. First we landed a solid jab during the public comment period. Appalachian Voices, Waterkeeper Alliance and Kentucky Riverkeeper submitted 35 pages of comments detailing even more evidence of intentional fraud, calling into question the Cabinet’s ridiculous assertion that the coal companies’ lawless acts were “transcription errors.” Kentuckians for the Commonwealth landed a left hook with the strong comments they submitted to Judge Shepherd. The Cabinet and coal companies were then peppered by repeated hits from the many citizens of Kentucky who wrote scathing rebukes about the insufficiency of the settlement agreements.

Finally, our outstanding legal team from Citizens’ Appalachian Law Center, Pace University, Capua Law Firm and Waterworth Law landed the heaviest blows. Federal law prohibits states from opposing citizen groups’ intervention. Our legal team provided the judge with a detailed argument explaining why the state legally cannot oppose us, and why they should act like a referee and get out of the way.

Now that the first round is complete, come see the rest of the match. Join us this Thursday at the Franklin Circuit Courthouse in Frankfort at 1:30. Judge Phillip Shepherd will decide whether the coal companies will be allowed to hide behind the Cabinet.

Due to violations of the Clean Water Act by ICG and Frasure Creek Mining companies, discovered and made public by Appalachian Voices and our partners in October, the state of Kentucky today filed its own legal action against the two companies.

Kentucky charged ICG with 1,245 violations at 64 coal mining operations in 8 counties and Frasure Creek with 1,520 violations at 39 coal mining operations in six counties. The state levied a $350,000 fine against ICG and a $310,000 fine against Frasure Creek. The state cited the coal companies for:

· Failure to maintain required records
· Improper operation and maintenance,
· Failure to comply with effluent limitations contained in the KPDES permit
· Improper sample collection
· Failure to utilize approved test procedures, and
· Failure to comply with the terms of the permit.
· Failure to submit monitoring results with an authorized signature
· Failure to utilize approved test procedures,
· Contributing to pollution of the waters of the Commonwealth
· Degrading the waters of the Commonwealth.

In October, Appalachian Voices and a coalition of partners—including Kentuckians for the Commonwealth, Kentucky Riverkeeper and Waterkeeper Alliance—filed a Notice of Intent to Sue against ICG Knott County, ICG Hazard, and Frasure Creek Mining, a subsiidiary of Trinity Coal. The notice letters detail numerous examples of the three companies exceeding pollution discharge limits in their permits, consistently failing to conduct the required monitoring of their discharges and, in many cases, submitting false monitoring data to the state agencies charged with protecting the public. The state of Kentucky’s enforcement actions against these mining companies confirm what we alleged in our notice letter – mining companies in Kentucky have been irresponsibly monitoring and reporting their harmful discharges into rivers of the state.

The statement issued today by the Kentucky Energy and Environment Cabinet acknowledged that the notices of intent to sue filed by Appalachian Voices and our partners were directly responsible for the legal action filed by the state of Kentucky:

“The allegation that the discharge monitoring reports (DMRs) received by the Department for Natural Resources did not show accurate readings for contaminants in waterways was raised in early October by four environmental groups that announced their intent to file suit against the two companies.

Following receipt of the notices of intent to sue, the Department for Environmental Protection performed Performance Audit Inspections (PAIs) on Oct. 14 and 15, 2010 at three coal mining facilities and the laboratories performing the sampling for the companies. Because a PAI includes oversight of sample collection and analysis, the contract labs used by ICG and Frasure Creek were included in the process.

The PAIs revealed poor record keeping, inadequate quality assurance and quality control, improper procedures, and one facility with water quality impacts. While many of the violations were found at the laboratories, the mining companies are responsible for their shortcomings under state law.

Appalachian Voices and its partners will be reviewing the complaints and consent decrees filed by the state of Kentucky. Despite the state’s enforcement actions, we continue to believe that we have exposed just the tip of a very deep iceberg. We are encouraged by the state’s announcement that they are continuing to investigate other mining companies for similar violations; the people of Kentucky can rest assured that Appalachian Voices and KFTC are likewise continuing their investigations into these improper mining activities beyond the companies cited in our notice letters filed in October.

Gloria Griffith from the Sierra Club's Watauga Group tells the EPA why coal ash should be regulated as a Hazardous Waste

Yesterday in Knoxville, TN the EPA held a public hearing on whether or not to regulate coal ash as a hazardous waste.

Coal ash or coal combustion residuals (CCRs) are the stuff that is left over after coal is burned and constitutes one of the nation’s largest streams of waste. Coal ash contains many heavy metals and toxins such as lead, mercury, selenium, cadmium, barium and others. Currently it is largely unregulated and is mostly stored in giant unlined ponds that are hundreds of acres in size.

Coal ash was brought to the nation’s attention 2 years ago when in Kingston TN, when a TVA coal ash pond broke, spilling billions of gallons of coal ash into the Emory, Clinch and Tennessee Rivers, just a half hour drive from the Knoxville hearing.

The EPA heard a variety of speakers from the power industry and coal ash recycling companies. The urged the EPA to regulate coal ash under subtitle D of the Resource Conservation and Recovery Act (RCRA). This would basically keep coal ash regulated the same way it is now. Their main arguments are that further regulation is unnecessary and it would hurt their ability to make money because if it were regulated as a hazardous waste there would be a stigma attached to it and it would be more difficult to reuse the ash in products like wall board, concrete, structural fill material and soil amendments.

Smoke stacks are scary. Photo by Hartwell Carson

Environmentalists also came to let their voices be heard. Most believe that coal ash should be regulated as a special waste under subtitle C of RCRA, this would regulate it the same as a hazardous waste, but call it a special waste to avoid the stigma that industry folks are afraid of. They believe that, as it is today coal ash contaminates groundwater, surface water and air and poisons fish, soil and nearby residents.

Environmental groups also organized a rally at the hearing. Since Halloween is just around the corner they chose the theme “Coal Ash is Scary”. Over 50 people dressed up in costumes and waved signs to show their support of strong coal ash regulations.

The Sierra Club began the day by delivering 6,000 written comments to the EPA in support of strong federal regulation.

There is still time for you to submit written comments as well. Click here to tell the EPA what you think. Comments will be accepted through Nov. 19.