Breaking news in concerning coal permitting and enforcement in our neighboring state of Kentucky: Four environmental organizations are filing a formal petition asking the U.S. Environmental Protection Agency to take over the state’s National Pollution Discharge Elimination System (NPDES) program.
The petition, which I’ve posted online here, alleges a “complete breakdown” of Kentucky’s implementation and enforcement of the Clean Water Act permitting program. In particular, the petition alleges:
… The state’s capitulation to the coal industry and its complete failure to prevent widespread contamination of state waters by pollution from coal mining operations leaves EPA no choice but to withdraw its approval of the program.
The petition cites the Kentucky Division of Water’s own figures showing 1,200 miles in the Upper Kentucky River watershed, nearly 490 miles in the Upper Cumberland River watershed, and 780 miles in the Big Sandy/Little Sandy/Tygarts Creek watershed as impaired with coal mining as a suspected source. But, the petition alleges this nearly 2,500 miles of impaired streams in the coalfields of eastern Kentucky “seriously underestimates” the scope of actual stream impairment.
The petition outlines these major problems:
* New testing by the U.S. EPA which revealed toxic pollution levels downstream from Kentucky mining operations that greatly exceeded legal limits.
* Kentucky’s failure to limit coal mining’s selenium discharges, “despite overwhelming and incontrovertible evidence of mining’s harm to Kentucky’s river and streams from selenium pollution.”
* Kentucky has not enforced its narrative water quality criteria for conductivity, “despite overwhelming scientific evidence that this pollutant is causing widespread biological impairment in streams.”
* Most coal mines in Kentucky are covered under a blanket “general permit” rather than site-specific water pollution permits, a system that is “inadequate to detect and prevent violations of water quality standards.” For example, for mines with existing permits, Kentucky’s Division of Water only requires mine operators to take a single “grab sample” of their discharges once in five years. According to the petition:
This testing is usually insufficient to demonstrate that there is no reasonable potential for violations. And even when tests do show that there is reasonable potential, KYDOW misapplies EPA guidance on that issue and ignores the potential. In every case, KYDOW wrongly concludes that no future monitoring is required and no permit limits are necessary.
* Even when Kentucky does consider issuing individual permits for mining operations, it only analyzes discharges for compliance with acute water quality criteria, not chronic criteria.
* Kentucky has only evaluated and assigned Total Maximum Daily Loads (TMDLs) for 51 impaired streams, while 2,000 other impaired streams have no TMDLs.
* Kentucky is not requiring NPDES permits for bond forfeiture and AML sites, so they are not setting enforceable pollution limits at those sites.
Among the other interesting points made in the petition:
One site where toxicity testing showed problems was downstream from the Guy Cove reclamation study site — recently touted in a Kentucky newspaper article — suggesting that efforts to rebuild a stream there haven’t worked as well as researchers hoped.
And, Kentucky has just four NPDES permit writers to manage 2,353 permits, or about 588 permits each. By contrast, West Virginia has 15 NPDES permit writers who manage 1,266 mining permits, or about 84 permits each.
I’ve asked for comments from Kentucky officials and from the state’s mining industry, but haven’t heard back from those folks yet.
The petition was filed by the Appalachian Center for the Economy and the Environment, the Sierra Club, Public Justice and Kentuckians for the Commonwealth.
We’ve written before on Coal Tattoo about selenium problems in Kentucky, and, of course, a similar petition for an EPA takeover was filed concerning the water pollution program at the West Virginia Department of Environmental Protection.
Subscribe to the Coal Tattoo
An Inquest on Our Lakes and Rivers (8 pages)
Justice William O. Douglas
Playboy, June 1968
(Excerpt)
Strip mining for coal is another souce of great infection. Strip mining uses massive machinery to remove coal near the surface. And it is a process notorious for descreating wild land and poisoning pure water. There is sulfur in the Appalchian lands, and sulphur when wet produces sulphuric acid, which destroys all vegetation and aquatic life in streams and ponds that it reaches. At least 4000 miles of Appalachian streams are being poisoned this way. TVA and well as private operators are the despoilers ,TVA flying the federal flag of conservation. It uses coal from strip mining to run its stand-by steam plants.
Why must people tolerate this ruination of our mountain waterways?
—
POINTS OF REBELLION
WILLIAM O. DOUGLAS
1969
http://www.constitution.org/wod/wod_por.htm
(Excerpt)
Youthful dissenters are not experts in these matters. But when they see all the wonders of nature being ruined they ask, “What natural law gives the Establishment the right to ruin the rivers, the lakes, the ocean, the beaches, and even the air?”
And if one tells them that the important thing is making money and increasing the Gross National Product they turn away in disgust.
Their protest is not only against what the Establishment is doing to the earth but against the callous attitude of those who claim the God-given right to wreak that damage on the nation without rectifying the wrong.
There are “colonies” within the United States. West Virginia is in a sense a microcosm of such a colony. It is partially owned and effectively controlled by coal, power, and railroad companies, which in turn are controlled by vast financial interests of the East and Middle West. The state legislature answers to the beck and call of those interests. Strip mining, the curse of several States, has easy going in West Virginia. Black lung cancer takes an awful toll among miners. The Establishment gave in a little and allowed the legislature to pass a sort of a law under which a man totally disabled from black lung cancer gets, at the most, $2500 a year — guaranteed to keep him at the poverty level. The Establishment controls, of course, the agencies and commissions that administer the welfare, compensation, and unemployment systems of the State. The “mother” interests that own the wealth of West Virginia appear secure. But under the surface there is violence boiling.
===
Sierra Club: William O. Douglas Award, established in 1976 to recognizes those who have made outstanding use of the legal/judicial process to achieve environmental goals
William O. Douglas–What’s My Line
http://www.youtube.com/watch?v=2B9wM4gATvM (5:18 minutes)
http://www.thenation.com/doc/20030414/garrow/single
I’m wondering if we are starting to edge towards a “tipping point,” by that I mean the point where it is so painfully obvious to EVERYONE that the state environmental regulators in WV, KY, PA (insert name of Appalachian/extractive mineral state here) are so totally bent on granting permits that they have completely forgotten that the word Protection is in many of their agencie’s names.
Will the feds actuallty take over in Kentucky? No, no more so than they really want to in WV, but the mere threat of it has at least prodded the WV Department of Environmental PERMITTING into pretending to care to do its job with things like selenium limits.
Great news, Ken Ward, if this petition bears fruit.
Except in the most obvious cases where those in charge of protecting us (we the people, our water, our air, our retirement pensions, etc.), have been clearly bought off, bribed and corrupted (for example, most of our congressmen, many of our governors, and several senators), except for these most glaring, reeking cases of fraud and corruption, I can only conclude that such a total failure of state permitting agencies and regulators to constrain these greedy, polluting bastards, is simply the result abject of ignorance. In short our politicians are either horrifically corrupt, or horrifically stupid, or both. And we are just as stupid for allowing this CRAP to go on, for decades. Mining in America is utterly out of control. The 1872 mining law and hysterical levels of deregulation have given you the most polluting industry in the world. American Mining: In dire need of reform. Will it happen? It’s up to you. Get Active.
Warm and Fuzzy Regards,
Daniel R. Cobb, author of a thriller about this very topic: THE MINE
Did the groups from West Virginia ever receive a response to their petition? Didn’t the EPA have so many days to respond?
This Nation has over 230 years of evidence that the people need enlightened stewardship of the “commonwealth”. However two destroyers of private property and associated values are ignorance and perceived economics. We have over used our land. We forced it to produce beyond its ability to recover. Lands were plowed that should not have been. Vast forests were cleared and grasslands were overgrazed. The driving force almost always was economics (Berry-1995). The more marginal is the land the worse the abuse. The cheaper the cost of applied water, the greater the land and water abuse. The greater the subsidy for the crop grown, the greater the land abuse. Too frequently the social cost is lost topsoil, poor water quality, absentee landowners; polluted rivers, contaminated fish and wildlife resources; fish and wildlife populations greatly reduced, along with severe habitat and environmental degradation. The lost recreational opportunities and lost scenic values can relegate a community to near impoverished status (Worster –1984-a).
Today, for example mountaintops are literally blasted away to get at coal deposits. Valleys have been filled, rivers and streams polluted, fish resources degraded or lost, domestic water supplies polluted all in the name of economics and cheap coal (Mitchell – 2006). This mountain top mining activity is a reminder of the hydraulic mining impacts to California from 1855 to 1884. For years hydraulic mining companies blasted away at hillsides with powerful streams of water to get at the gold. The mining companies disposed of their waste and other debris in such a way that it ended up covering acres of agricultural land, wrecked several towns. The water was polluted and unfit for domestic uses. Navigation on several rivers, the Sacramento –San Joaquin Delta and San Francisco Bay was impacted. The impacts were a public nuisance of major proportions. In 1884 the Federal Ninth Circuit Court issued a permanent injunction against any further dumping by the North Bloomfield Mining Company. The case was Woodruff v. North Bloomfield Mining Co., (18 F. 753 –1884). Later that year the State Court decision came down in People v. Gold Run Ditch and Mining Co., (66 Cal. 138 –1884). These decisions stunned the mining industry. In following years, Federal courts, case by case shut down most of the other hydraulic mines in the Sierra and occasionally sending in the military to enforce its will (Brechin-1999).
Apparently unbridled exploitation is the footprint of capitalism whether in 1884 or 2008. The Massey Energy Co. recently agreed to a settlement with the Federal Environmental Protection Agency to pay a fine of $20 million for destroying lands and polluting hundreds of streams with sediment, coal slurry and other debris in West Virginia and Kentucky (Hebert, January 18, 2008). Massey Energy was lucky. A Federal court, with evidence of such widespread impacts, could have imposed a much heavier fine and enjoined the coal mining company from using mountaintop-mining operations if they could not keep sediment, coal slurry and other debris out of the people’s rivers, streams and water supply, killing aquatic life.
If any agencies need to taken over it should be EPA and the Army Corps for total incompetence. Surface coal mining our past, prest and will continue to be future for many years to come.