Environmental Groups Sue DEP Over W.Va. Coal Reclamation Fund

A new lawsuit brought by environmental groups raises the alarm over the solvency of a fund that can be used to clean up coal mining operations when mining companies walk away.

Three groups — the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Sierra Club — filed the citizen’s suit Thursday against the West Virginia Department of Environmental Protection and its secretary, Austin Caperton.

The complaint alleges the agency violated federal mining laws by failing to alert federal mine regulators that recent actions jeopardize the state’s Special Reclamation Fund.

Those actions include the bankruptcies of Murray Energy and Blackjewel Mining L.L.C., the possible bankruptcy of Southeastern Land, LLC and an emergency motion filed by the DEP in March seeking to place more than 100 permits controlled by coal operator ERP Environmental Fund into a special receivership so they wouldn’t be forfeited

“The WVDEP has failed to properly manage its reclamation program, which has led to a dire situation, one in which there is not enough money to clean up mines abandoned by their insolvent operators,” said Karan Ireland, senior campaign representative with the West Virginia Sierra Club.

The solvency of the state’s Special Reclamation Fund and bonding program have long drawn criticism over whether they would be sufficient to cover all of the reclamation work needed across the state.

The lawsuit draws largely from the court actions the DEP took in March against ERP. In an emergency motion the agency wrote that transferring the company’s more than 100 permits to the state’s Special Reclamation Fund “would overwhelm the fund both financially and administratively, with the result that the actual reclamation and remediation of the ERP mining sites could be delayed.”

According to a Jan. 9, 2020 report to the West Virginia Legislature, as of Sept. 30, 2019, the Special Reclamation Fund had just over $58 million in cash and investments. It is funded by a 12.9 cent tax per ton of coal mined in West Virginia.

A spokesperson for the DEP said the agency “cannot discuss pending litigation and cannot comment at this time.”

Ohio Valley Coal Companies Scored Tens Of MIllions In Paycheck Protection Loans

More than 50 Ohio Valley coal companies received loans totaling as much as $119 million through the Paycheck Protection Program meant to keep people employed during the pandemic’s economic downturn.

Congress passed the PPP in March to help businesses keep employees on the payroll and out of unemployment lines. The data released by the Small Business Administration does not show specific dollar amounts for the loans, but rather categorizes loans into ranges such as $150,000 to $350,000 at the lowest end, and $5 million to $10 million at the upper end.

Six Ohio Valley coal companies fell into that high-dollar category, including Rhino Energy, whose former CEO David Zatezelo currently heads the federal Mine Safety and Health Administration.

Five subsidiaries of Lexington, Kentucky’s bankrupt Blackhawk Mining received loans totalling as much as $14 million. Four of those five subsidiaries reported that zero employees would be affected by the loan. A spokesperson from Blackhawk did not immediately respond to requests for comment.

Click here to see which Ohio Valley coal companies got the most from the Paycheck Protection Program.

Lexington-based Ramaco Resources, with mines in Pennsylvania and West Virginia, indicated 381 jobs would be affected by the program, according to SBA records.

And according to ProPublica, coal companies associated with West Virginia’s billionaire Governor Jim Justice’s family received up to $12 million from the program. Many of the Justice mines have long histories of failures to pay mine safety fines and taxes.

Employment in the coal sector is uncertain in the best of times; some coal miners say they head underground each shift well aware that they may not have a job when next they see daylight. The pandemic has only worsened the prospects for miners. Just 43,800 Americans were employed in the coal industry this June, down from 51,000 last December, according to the Bureau of Labor Statistics. And a wave of bankruptcies has now overtaken most of the region’s coal producers.

Black Gold Oddities

To incentivize companies to use the funds to preserve jobs, PPP loans are eligible for forgiveness ⁠— meaning companies don’t have to pay the government back ⁠— if the loans are used to cover employee wages, benefits or tips.

Indiana-based American Resources Corporation, which has mines in Kentucky and West Virginia, received as much as $5 million through the program, even though the company has come under fire for failing to pay its employees long before the pandemic hit. In a recent bankruptcy court hearing, Judge Gregory Schaaf urged ARC attorney Billy Shelton to use the loan instead to pay court fees, foregoing the possibility of forgiveness at a later date.

If ARC chooses that path, it would put a further financial strain on a company that is already teetering under the weight of new liabilities it acquired last year.

“I would expect [ARC] to liquidate given current market conditions and available liquidity,” said Josh Macey, Assistant Professor at the University of Chicago and an expert on coal-company bankruptcies in reference to ARC’s financial standing at the time of the bankruptcy hearing. “There is just not enough cash right now for them to keep operating.”

The PPP loans come amid a historic downturn in the coal industry, which has only been made worse by the coronavirus pandemic. New renewable energy plants are cheaper than new coal plants “virtually everywhere,” according to a recent report, and the retirements of Ohio Valley coal-fired power plants mean the market for the resource will likely continue to worsen.

Clean Water Wanted: Contaminated Wells And The Legacy Of Fossil Fuel Extraction

“You seen that one with the tombstone up there?” seven-year-old Timothy Easterling asks, looking toward the grass just uphill from his home. “That’s my papaw.”

Timothy’s grandfather Chet Blankenship died in 2016, at age 69. Blankenship lived on land he and his family have long owned at the end of a road atop Bradshaw Mountain in McDowell County, West Virginia. His hand-painted tombstone sits in the grassy patch above the family homes.

Blankenship’s daughter Melissa Easterling now lives in the house next door with her husband, Chauncy Easterling, who grew up on a nearby ridge. They live together with their son Timothy, and usually one or two foster children.

Chet Blankenship died from kidney failure soon after his family started noticing odd colors and smells in their well water. After he died, they got their water tested, and learned that arsenic was among the contaminants that had seeped into their well. The National Institutes of Health links high arsenic exposure to a range of kidney diseases.  

The family can’t prove that the arsenic in the water caused Blankenship’s death, and they can’t get firm answers about the contamination in their well and the mining and drilling activity that surrounds their property. But Timothy’s memories of his grandfather reflect the family’s anxiety about the water they depend on.

“One time Chet used it and then he got so sick he just gave up and died, didn’t he?” he asked his mother.

Melissa gently corrected him. “Honey, he didn’t give up. It just — he had to go.”

Timothy thought for a moment, then quietly chimed back in, “He used to be my papaw.”

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The Easterling family, Chauncy, Melissa and Timothy, in their living room.

The Easterlings live in the central Appalachian coalfields and much of the land has been mined for miles in every direction. Water runs through the collapsed network of former mines, which may house industrial waste, as well as byproducts from the gas wells that tapped into the methane associated with coal seams.

There are many possible sources of contamination but the family doesn’t know which company might be to blame, or how to hold one accountable to fix the problem, or at least pay for them to get connected to a clean water system. State environmental officials deny there is any evidence connecting the bad water to the mining or drilling nearby. Adding to the family’s frustration, they’ve been asking for a connection to the nearby public water system for years, only to hear that there’s not enough money.

For decades, public water systems in the U.S. have been consistently underfunded, affecting both water access and water quality. EPA records show that in Kentucky, Ohio, and West Virginia alone; there have been more than 130,000 violations reported in the last twenty years. At least 2,000 systems have tested positive for contaminants since 2012. Those statistics only cover people connected to public water systems.

Nationwide, another thirteen million people draw from private wells, and two million people don’t have a reliable source of running water. In areas affected by extraction industry, such as McDowell County, many wells and springs that rural residents are used to relying on are now running dry or showing unsafe levels of contaminants like arsenic and lead.

Explore potential hazards to WV water sources here.

Struggling for Water

When their water issues started, Chauncy and Melissa contacted the county health department to get their water tested. On seeing the family’s dark brown water, the department referred the family to the state’s Department of Environmental Protection for more advanced testing. The family also had testing done by Appalachian Voices, a nonprofit environmental advocacy group that has been drawing attention to people living with contaminated water. Those tests revealed unsafe levels of arsenic and lead, among other contaminants.

Chauncy and Melissa, together with Willie Dodson of Appalachian Voices, also tested water sources within a few miles of their house. They say they’re yet to find a water source that they trust. The most alarming reading came at a gas well that was drilled into a shallow section of a giant underground mine. It sits right beside the creek that’s below the Easterlings’ home.

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Residents tried to cap an abandoned gas well with stones.

That sample showed levels of lead and arsenic even higher than what had shown up in the Easterlings’ well water, along with other contaminants.

Just downstream from that sample site, water from the mine had broken out of the hillside and was flowing into the creek with an oily sheen that left the creek a dingy shade of orange.

More rounds of testing followed, including by scientists from Virginia Tech. The Easterlings say one official told them he suspected coal slurry, a toxic waste product from coal preparation, was the main contaminant, but never gave them any formal documents or test results.

The Easterlings knew there were problems when the water ran brown.
Credit Animation by Ariana Martinez

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Official comment and documents from the DEP say that there was “no indication that the well was impacted … by mining activity,” because both of the neighboring mines on record were deeper than the bottom of the well. The Easterlings believe that mines and gas wells exist far beyond what’s shown on the records.

The family can sometimes gather enough water from rainfall, using a system Chauncy put together to collect runoff from their roof into a cistern. When there’s a dry spell, Chauncy hauls water, towing a 250 gallon tank behind his pickup truck. Filling and hauling the tank costs the family around $200, and the water is only good for washing and flushing toilets, not for drinking.  Since Chauncy works full time, they’ll sometimes have to wait for a weekend before he can fetch water. In the meantime, they have to make do without bathing and doing laundry.

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The Easterlings with the water collection system they built.

Some of their neighbors, particularly those who are elderly and on fixed incomes, aren’t able to install a rain collection system or haul water. That leaves many of those already in the hardest situations with no alternative to using contaminated water from their wells and springs.

Linda McKinney runs the main food pantry that serves McDowell County. She says that all of the families served are drinking water from unsafe sources. She also sees kidney and liver issues far too often among those families.

The pantry provides bottled drinking water along with food, but they’re not able to fully meet the families’ needs. The food pantry recently received a donation of hydro-panels, which use solar energy to condense water moisture from the air. McKinney hopes that will help narrow the gap between what her team is able to provide and the need for clean water among the families they serve.

Widespread Issue

I’ve reported on water issues since 2016, mainly in the central Appalachian coalfields. The most glaring water problem I covered was in Martin County, Kentucky, where residents complained about possible  exposure to health risks due to extremely leaky pipes and a lack of communication around water outages.

Martin County’s many-layered water problems started to get national attention and significant outside funding. But the $5 million now heading for Martin County is a drop in the bucket compared to the more than $600 million in water infrastructure needs that exist just in Appalachian Kentucky, according to a study from the Kentucky Infrastructure Authority. That includes $28 million for Letcher County, where I live, and where a third of the residents have no option for connecting to a public water system, according to the same study.

The federal government estimates that $472 billion in water investments are needed across the country in the next twenty years. If you break that down to one year, it’s a bit over $23 billion.

In recent history, the most the federal government has allocated toward water system infrastructure was $7.7 billion in 2009, as part of the American Recovery and Reinvestment Act. Every other year since at least 1995, the amount has been less than $3 billion, even though the government’s own assessments have always shown an average annual need of at least $12 billion.

In reporting on Martin County I spoke repeatedly with Nina McCoy, a retired science teacher who, together with her husband Mickey, has played a prominent role in water testing and advocating for local water protection since at least 2000. That’s when a coal slurry impoundment broke through an underground mine shaft and sent a flood of sludge roaring down multiple creeks in Martin County, poisoning miles of streams.

McCoy says that in recent years, she’s seen a shift in local thinking and national awareness. She recalls that when neighbors without water in Martin County first saw TV coverage of the water crisis in Flint, Michigan, “It was like, oh my gosh, there are other people who have water problems.”

McCoy now believes that any real solution will have to come from solidarity among communities whose water has been impacted. “We all need to get together on this, because this is a problem nationwide.”

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Nina and Mickey McCoy outside their restaurant in Inez, KY.

The kinds and causes of America’s drinking water crises are widely varied, but extractive industry is a common thread. On a reporting trip to a coal mining region of the Navajo Nation, near Black Mesa, Arizona, I learned that while rain has long been scarce in the area, there used to be reliable sources of groundwater. Windmill-powered water wells dot the landscape, but many of them have run dry. Since coal mines opened on Black Mesa and started using large amounts of water to pump coal to a power plant, many wells and springs have run dry.

The mines and power plant recently closed, but it will still take years for the groundwater to recharge. In the meantime, rural residents have to pay to haul water from a well in town that taps into a deeper layer of groundwater. That water can be used for crops and livestock but not for human consumption. Drinking water has to be bought or brought in from elsewhere.

Nicole Horseherder is a resident of Black Mesa and founder of the community organization Tó Nizhóní Ání, which translates roughly to “clean water speaks.” She has seen the springs on her land dry up, making it harder and more expensive to keep livestock. Her fears though are mainly for the future. 

“What’s going to be here in 20 years?” she asked. “If it’s not going to be here and it’s a life-giving element, there’s going to be no life here.”

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Residents of Black Mesa, AZ, wait to fill water tanks.

Watershed Moments

Many residents in affected communities feel there’s a special injustice to situations like these, where clean water hadn’t been a problem until extractive industries took a toll.

Melissa Easterling said that growing up in McDowell County, good water was plentiful. High tables of clear groundwater flowed from abundant springs and streams. Her family and neighbors didn’t need to worry about water infrastructure. She suspects that as the used-up mines were allowed to flood, the water table sank. And now, she fears, the residue of coal and gas extraction seems to have left the water contaminated.

The Easterlings live at the end of Emerald Ridge. Looking south, the next ridgeline marks the state line with Virginia. To the north, down below, is a wooded valley carved by Panther Creek. The creek flows on into Tug Fork of the Big Sandy River, which marks the state line with Kentucky.

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The wooded hills along Panther Creek.

The area surrounding Panther Creek was long known as Panther State Forest and is now a wildlife management area meant for hunting and fishing. Chauncy says it was once an extremely popular fishing spot, but he and other locals have long stopped going there because of contamination fears.

Staff at Panther WMA say that water wells in the park are tested regularly, and haven’t shown any excessive levels of contaminants. They still stock the creek for fishing, and grow gardens to attract deer for hunters. The park still feels wild and healthy, though you’re likely to come across more gas wells and pipelines than other visitors.

Looking downstream from where dirty mine water flows into the creek, Chauncy lamented what’s been lost. “We used to drink the water out of that creek. Now you can’t do it. It’s contaminated.”

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Chauncy Easterling watches murky water seep into a stream feeding into Panther Creek.

He worries for the future. “God knows our children’s children won’t be able to swim in that creek or play in that creek or fish in that creek.”

Water System Woes

The McDowell County water system has a line that runs up Bradshaw Mountain, and it reaches some of the families whose wells have dried up or been contaminated, but it stops a mile short of the Easterlings’ home. The family has been trying to get connected for eight years, but there’s still no money for the project, which would take years more to complete even once funding is found.

Much of the water infrastructure in McDowell County was installed by coal companies for their workers when the industry was booming. But coal production has been declining in McDowell County since the 1940’s. Many water systems were abandoned as the mines closed, and were then neglected for decades.

A county-wide public service district was created to take over the systems with the intention to maintain, update, and expand them. The problem is, there hasn’t been enough money. Federal funding, once provided through grants, was largely converted to loans. The McDowell PSD now has $34,000 in monthly debt payments and can’t afford to take more loans, according to General Manager Mavis Brewster.

“You don’t want to keep raising rates,” Brewster said. “A lot of the residents in McDowell County are elderly, they’re on fixed incomes, and water’s a basic need. You have to have that.”

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Mavis Brewster, general manager of the McDowell County Public Service District.

Brewster said the PSD has some momentum toward expanding water services in the county. They’ve cobbled together what they can from state and federal agencies, but there’s nowhere near enough funding to meet their needs. 

Top priorities for construction this spring are for the towns of Keystone and Coalwood.

In Keystone, the risk of bacterial contamination is high enough that since 2012 residents have been under a continual advisory to boil their water for safety. Coalwood, where the PSD is located, is slated to be the first area covered by a new sewage treatment system. Three towns in McDowell County — Welch, War, and Bradshaw — have their own sewage treatment systems, but none of the 3,300 customers served by McDowell PSD have sewer service.

Brewster says some of the communities have pipes that collect sewage but then send it straight into the nearest river or creek. That’s been the situation in Coalwood, but even that system has deteriorated further since the coal company that built it pulled out and stopped maintaining it. The collection network has issues with clogging and backing up, flooding homes with sewage.

Neighbors in Need

Chauncy and Melissa have been asking questions of old timers among their neighbors, with special interest in ones who’d worked in the mine below their water table. Among them, Chauncy recounted, were at least a couple who have since died, and who said they never would have worked in that mine if they’d known it could poison their own water.

One neighbor whose water contains high levels of lead and arsenic is suing a coal company, and also fighting to get any damages covered by her homeowners insurance. She’s shared photos of severe rashes and chemical burns that she claims came from exposure to the water.

Chauncy and Melissa say they wish they knew who they could sue, but there are too many companies involved in the mines and gas wells around them to know who to hold accountable, especially since many of the operations have complicated corporate histories.

Outside Owners

Chauncy Easterling says it’s his understanding that most of the people who own the local coal and gas operations live in distant cities. “Chicago, New York, places like that,” he explains. “I’d like to see them come in here and clean it up. I’d say they ain’t even rich enough to fix what damage has already been done.”

He said those same companies often own the land that many many of his neighbors rent, which is one reason that many are afraid to speak out. People are worried that they’ll get evicted or have their property condemned.

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Gas infrastructure is common in Panther Wildlife Management Area.

These concerns about absentee land ownership are woven into the roots of many of the region’s problems.

In 1979, teams of academics, community organizations, and local individuals across Appalachia worked together to conduct a land ownership study. Large landowners were assessed in eighty counties across six states. The study revealed high proportions of absentee corporate owners, often paying low tax rates on their holdings.

In McDowell County, for example, more than three-quarters of the land and more than 90% of the mineral rights were held by absentee owners at the time. The five largest owners included a range of timber and mining companies, all based in other states.

A new land study is currently in development, and organizers are seeking funding to do an updated survey of land and mineral ownership in Appalachia.

Based on what records are available, it seems the overall picture has stayed the same. Outside companies own large amounts of Appalachia’s land and resources. The business model is extractive not just in taking fossil fuels out of the ground, but also in taking wealth away from the region.

With little local control over the land, widely depleted sources of natural wealth, a range of work and environment related health issues, it’s no wonder that so many Appalachian communities are struggling to build new economies and keep themselves afloat.

Funding Prospects

President Donald J. Trump campaigned with promises of major infrastructure spending, and the White House has frequently touted “Infrastructure Week” initiatives. But so far those have not resulted in major new projects or funding. The topic has since faded from prominence among the president’s talking points.

Prominent Democrats have called for a “Green New Deal” to include massive infrastructure spending, including on water systems. The Green New Deal bill introduced by New York Democratic Rep. Alexandria Ocasio-Cortez last year would “guarantee universal access to clean water,” but some fellow Democrats question the bill’s costs and the legislation faces stiff Republican opposition.

More immediately, coalfield communities have been focused on getting funding from the federal Abandoned Mine Land Fund, which is supported by a fee on coal companies and used to fix damages caused before enactment of the Surface Mining Control and Regulation Act.

A bipartisan proposal known as the RECLAIM Act would speed the rate of spending that AML money and expand the scope of funding to include projects like water infrastructure that can help communities and their economies. A few pilot projects following a similar model have been included in recent federal budgets.

What’s Underground

The Easterlings say they’ve never sold their mineral rights, so no mining company should have had the right to mine beneath their home. But core samples drilled deep from the earth show that the coal had been mined underneath them anyway. The family somewhat expected this, having seen dishes fall out of the cabinet from shakes and jolts when, they presume, pillars were being pulled in a mineshaft below them, allowing the cavity to collapse. Chauncy says this kind of “robbing coal” is commonplace. “It’s underground. It’s out of sight, out of mind.”

The collapsed coal seams have been punctured by gas wells. No one knows what’s still in the old mine voids. From scouting around the mine entrances and talking to friends who used to work in the mines, Chauncy and Melissa have come to believe it’s likely that heavy equipment, batteries, and other industrial trash was left behind in the mine. They’re also concerned that refuse from a coal washing plant — a dark toxic sludge known as slurry — might have been pumped into the abandoned mine, which is a common practice for disposing of the waste. There’s no official record of slurry being injected in the area, but the Easterlings have heard that the mine below them was used for dumping by a nearby coal washing plant.

There have also been dozens of gas wells drilled near this web of mines. Some older gas wells don’t show up on official maps because they were not properly permitted or have no identifiable owner.

Some of the wells in the area are from conventional drilling but records show others used fracking, which pumps water and chemicals into the ground, opening up cracks from which gas can be drawn.

Once a well stops producing it is supposed to be sealed. But at least some of the older wells around the Easterlings were left unplugged, with just an abandoned pipe sticking out of the ground.

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Chauncy Easterling looks into an abandoned gas well.

The Easterlings say that their water started to change soon after nearby gas wells were shut down. At first the water started to smell, then little bits of dark rock dust appeared, and then before long it was running dark brown.

Chauncy worked for years as a miner and then as a boss in underground coal mines. He says it wasn’t unusual for the mine to run into an area that had already been mined even though it was outside any other mine’s permit boundary.

Once, he said, a crew working under him cut into a gas well which hadn’t been on any of their maps. He and Melissa both remember that as a terrifying time. But shades of fear color much of Chauncy’s memories of working underground. Coal miners get paid not just to produce coal, but to regularly put themselves in danger.

Given today’s record rates of severe black lung disease, it’s no exaggeration to say Chauncy and other miners have been getting paid to accept that their lungs will likely get scarred by coal and rock dust.

Chauncy took a buyout offer in 2013, partly because his health and breathing had started to noticeably decline. The buyout came with six months of severance pay, which he used to get certified as a commercial truck driver. He’s applied for black lung compensation, but was told it may be five years before he’d start receiving any benefits.

Chauncy got out of the mines, but he and his family still fear for their health. Their home is surrounded by remnants of fossil fuel extraction and the lasting legacy of environmental degradation.

This story was made possible with funding from the Abrams Foundation, the Nieman Foundation for Journalism at Harvard University, and the Solutions Journalism Network.

Us & Them: Three Tales of Coal

For decades, coal was king in West Virginia. It paid good wages, paid the bills for many local services through taxes, and kept small towns alive. But more of our nation’s electricity is starting to come from other sources like wind and solar power. Coal is losing out.

This Us & Them episode brings us three tales of coal and its future in Appalachia. Two of those tales come from men who grew up in the same neighborhood in Charleston, WV and now hold very different perspectives. Andrew Jordan owns mines. Joe Lovett is an environmental lawyer. Our third tale comes from journalist Ken Ward, who has covered the coal industry for decades. He says West Virginia needs to look at another energy player – natural gas – to determine its future.

You also can listen to this episode of Us & Them on WVPB Radio on Thursday, October 24, 2019 at 8 p..m. Tune in to Us & Them on the fourth Thursday of the month at 8 PM, with an encore presentation on the fourth Saturday at 3 PM.

Remembering Ben Stout: An Environmental Legacy

The region just lost a powerhouse of environmental science and advocacy with the death of professor Benjamin Stout. Stout’s work as an educator, an expert witness in the courtroom, as well as his work empowering citizens with science, made long-term impacts regionally and nationally.

Stout was a Wheeling resident and, for the past 26 years, a biology professor at Wheeling Jesuit University. He was a stream ecologist who dedicated his life to science, nature, and above all, community. Ben died of cancer Aug. 3 at his home in Wheeling, surrounded by his family. He was 60.

Stout revealed some of his deepest convictions related to coal mining practices, a topic especially important to him, in a 2008 documentary called Burning the Future: Coal in America.

“When I look at a mountaintop removal site, valley fills,” he said, “I just look at that as a place on Earth whose value was among the best of all places on Earth diminished to among the least of all places on Earth.”

Stout spent a large part of his career studying impacts of surface mining on watersheds and nearby communities. He frequently monitored waters surrounding ponds built to hold coal mining waste — slurry impoundments. As coal companies complied with rules to limit pollution from power plants, Stout found more of those pollutants instead wound up in the ponds.

“The Clean Water Act was the reason slurry impoundments were initially created in order to contain the black water that’s left over from the coal cleaning process,” Stout explained in the film. “Then along comes the Clean Air Act and the irony is now we need to remove even more impurities from the coal, like the heavy metals.” He went on to explain that contaminants in the air have mostly been transferred to water, along with increasingly harsh chemicals used to pull the impurities from coal.  

The Expert Witness

Stout was often called as an expert witness in court cases surrounding watershed impairment. Attorney Joe Lovett recalled working with him during a landmark case in the late 1990s.

“It was a case that we brought before Judge Hayden— a federal judge at the time—to seek to stop mountaintop removal in the state,” Lovett said. He recalled the centerpiece of the case was the impacts of surface mining and resulting valley filling practices on surrounding aquatic life. Stout played a key role.

"The courts have this fiction that experts are somehow neutral, like machines. And Ben refused to play along with that," Lovett said.

During the trial, on a snowy February day, Stout guided Judge Hayden through a stream slated to be buried, and Stout did what he loved most: he waded through the stream finding insects.

“I think the judge appreciated that because he was a fisher, and those insects, mayflies and so forth with a very kinds of insects that fly fishers use all the time,” Lovett said. “I think the judge really learned from Ben, and I think that was crucial in winning that case.”

For the first time ever, a judge issued an injunction against a mountaintop removal operation, halting one of the largest ever proposed mountaintop removal operations, Spruce Mine No. .1. Necessary mining approval for Spruce 1 has been hung up in court ever since.

“The courts have this fiction that experts are somehow neutral, like machines. And Ben refused to play along with that,” Lovett said. He said Stout’s outspoken nature would sometimes create problems for him. He said, nevertheless, he admired Stout’s integrity.

“Ben not only as an expert, but as a human being and somebody committed to protecting the natural world really taught all of us how to be good advocates and reminded us why we do what we do.”

The Community Advocate

Stout spoke confidently with judges, lawyers and politicians, but he could also talk just as easily with anyone else.

Stout’s friend and colleague at Jesuit, Mary Ellen Cassidy, worked with him for years studying impacts of slurry impoundments on well water of residents in southern West Virginia. She remembers him as personable and disarming, traits that helped him to connect with even the most isolated community members who were living with polluted water wells.

“We would end up sitting down at [rural residents’] tables and talking just about everything,” Cassidy recalled with a laugh. “He had this kind, open spirit, and that’s who he was. He was very authentic. And people sensed that right away.”

Cassidy said his ability to connect with people and gather and provide valuable, valid research, made it possible to empower communities to affect change. His obituary notes how his work in communities, “led to 500 West Virginia families being connected to a municipal water supply at Williamson.”

The Watchdog

Stout was resourceful and respected by his peers. Standing next to the Monongalia River in Morgantown, Paul Ziemkiewicz, reflected on how waters like these, “benefited mightily from water improvement efforts over the years and to a large extent thanks to Ben’s contribution of improving our water and making places like this an asset to the community rather than what it was 30 years ago, which was kind of a dump.”

"Ben's integrity as a scientist was, was always first and foremost," Ziemkiewicz said.

“Ben’s integrity as a scientist was always first and foremost,” said Ziemkiewicz, director of the West Virginia Water Research Institute at West Virginia University. He worked alongside Stout and other scientists in the wake of a major fish kill on Dunkard Creek, and the horizontal gas drilling boom in 2009 to create the 3 Rivers QUEST program.

“We all compared notes, we all monitored the river using the same protocols and shared our data and as a consequence, we let it be known to the whole world that they were being watched.”

The Educator

Stout’s work was also a source of inspiration to his students at Wheeling Jesuit University.

“You couldn’t help but just want to follow in his footsteps,” former student Jacob Keeny said.

Keeny remembers how Stout turned him on to stream ecology soon after he started at Jesuit in 2011. Keeny said he was inspired by Stout’s unquestionable passion for community service.

“He wanted his students to respect the community first and understand science second. If you couldn’t 

"You couldn't help but just want to follow in his footsteps," Keeny said.

connect the two, you were hard pressed to get a good grade in his class,” he recalled. “It was about how well you understood what was going on, and how you could solve problems to fix crises that people were going through.”

Jacob remembers his professor would jump at any chance to work with a community in crisis, and that he’d always take students along with him. For Jacob, that meant getting involved during a major chemical spill in Charleston in 2014 that left 300,000 people without water for days.

“I got a call from him middle of the afternoon during a snowstorm, and he said, ‘Hey, we’re going to be working on this Elk River spill, you want to you want to join me?’ I said, ‘Sure , why not?’”

Stout’s expertise in water testing and innovative problem solving proved to be a value contribution.

“There weren’t a whole lot of press releases explaining what [MCHM] was,” Keeny said. “No studies on it saying what it would do to human health. Ben, he’s a he’s a freshwater stream ecologist. And so he took the approach of seeing what it does to the bugs in the river first.”  

Stout was eventually hired by a law firm that brought a class action suit over the spill. Because human health studies can take decades to provide conclusive results, Stout and Keeny turned to insect indicator species in streams. They conducted toxicity tests to gauge the potential health effects of MCHM. Exposure to even very low concentrations of the chemical MCHM turned out to be fatal for the insects.

“And I believe that information that ended up being used in the class action lawsuit and years later, they’ve finally settled that suit. And I think people are starting to get a little bit of justice.”

Trump Expected to Announce Power Plant Rule Replacement at W.Va. Rally

President Donald Trump is expected to use a rally in West Virginia Tuesday to roll out a replacement for a major climate regulation that sought to limit carbon pollution.

Trump will be in Charleston campaigning for Republican U.S. Senate candidate Attorney General Patrick  Morrisey. He is also expected to announce his administration’s replacement for the Clean Power Plan.

That Obama-era regulation aimed to cut greenhouse gas emissions from power plants 32 percent by 2030, relative to 2005 levels in an effort to stem the effects of climate change. The rule took a broad approach and encouraged states to shift electricity generation away from coal toward cleaner natural gas and renewable energy.

The approach sparked legal challenges notably by Morrisey who led a coalition of states in the fight against the rule, effectively getting the U.S. Supreme Court to halt its implementation.

Initial reports indicate the administration’s new proposal is much weaker. Documents reviewed by The New York Times and other news outlets show the Trump administration plans to allow states to decide if and how to curb carbon emissions from power plants.

It is also more narrow. The replacement plan encourages coal plants to boost efficiency by adding automation or replacing worn parts to release fewer carbon dioxide emissions from every ton of coal burned.

James Van Nostrand, a  law professor and director of West Virginia University’s Center for Energy and Sustainable Development, said if it made economic sense for utilities to invest in upgrades to boost power plant efficiency, they would have already done it.

“Spending more money to make them more efficient just makes the price higher that you’ve got to receive in order to make these plants work,” he said.

Environmental advocates argue the new plan may encourage coal plant operators to run them more often and delay their closure, which would release more emissions into the atmosphere.

It remains unclear what impact the regulation overhaul may have on the state’s coal industry.

Van Nostrand said the cheap natural gas and the falling price of renewable energy like wind and solar will continue to drive the decisions utility companies make.

“It’s going to be a great disappointment to a lot of folks in West Virginia that dismantling the EPA and Clean Power Plan is not going to have that much impact,” he said.

A report released last week by West Virginia University’s Bureau of Business and Economic Research, showed the recent uptick in coal production will be short-lived. It forecasts production will level out by 2020 and decline precipitously during the next two decades. The short-term decline is expected to be driven largely by a drop in international exports, although continued declining demand for coal-fired electricity is a lesser factor.

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