Tag: OVEC

Advocates Say Citizen Mining Complaint Process Weakened By Rule Change

Environmental and community advocates in Appalachian coal communities are concerned about a new federal rule, finalized this week, that is changing the process that allows citizens to file complaints about polluting coal mining operations.

The Department of the Interior’s Office of Surface Mining Reclamation and Enforcement said in a Tuesday press release that the changes to the 10-Day Notice policy would “streamline” the complaint process.

Under federal law and agency regulations, anyone can notify the agency about alleged mining violations. Under the original rule, the agency would share the complaint with state regulators. That kicked off a 10-day clock for the state to take action, either by forcing the company to fix the problem, or showing why action wasn’t necessary.

Under the new rule, the agency can informally contact state regulators before sending a 10-Day Notice. Officials said it would allow for more flexibility between state and federal investigations. Final language for the rule has not been made public.

“This rule restores [the Surface Mining Control and Reclamation Act] mandate of cooperative federalism, reduces duplicative red tape, and ensures we work alongside our state partners who are the primary enforcement authorities under the law,” Deputy Secretary of the Interior Kate MacGregor said in the release.

Environmental groups fear the changes weaken their ability to protect communities and the environment. In a statement addressing the changes proposed earlier this year, the advocacy group Center for Biological Diversity said the new rule changes the entire reporting process, making it more difficult for residents and making responses from regulators “discretionary instead of mandatory.”

Vivian Stockman, executive director of the Ohio Valley Environmental Coalition, said the 10-Day Notice process has been an important tool used in Appalachia.

The process was one tool used by activists to force the relocation of Marsh Fork Elementary School in Raleigh County away from the shadow of a coal processing plant, coal slurry impoundment and mountaintop removal operation. The groups argued the operations threatened the health and safety of the students.

“This rule change is all about trying to thwart people from seeking help when their communities are harmed by coal companies’ actions,” Stockman said. “What is indisputable is that this administration will side with the coal barons, communities be damned.”

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.”

Federal Judge Rules Citizen Lawsuit Can Proceed Against Justice Family-Run Coal Companies

A federal judge has denied a request by coal companies owned by the family of West Virginia Gov. Jim Justice to dismiss a lawsuit over selenium violations at a southern West Virginia coal mine. 

The Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, Appalachian Voices and the Sierra Club in sued Bluestone Coal Corporation in August 2019, using the citizen lawsuit provision of the Clean Water Act. 

The groups alleged that the Justice companies were discharging selenium at the Red Fox Surface Mine in McDowell County at levels that violated federal mining permits. Selenium, a chemical element found in coal that bioaccumulates, has been linked to growth deformities and reproductive failure in fish. 

According to court documents Bluestone reported 107 violations since July 2018 — 42 violations of its average selenium limits and 65 violations of its maximum selenium limits. The company paid $278,000 in fines. But environmental groups argued the company should be subject to millions more in civil penalties. 

Bluestone and its affiliates, including Red Fox’s operator Southern Coal Corporation, disagreed. They urged the court to dismiss the lawsuit, arguing that the Justice coal companies are being monitored by federal environmental regulators under a 2016 agreement. 

Between 2009 and 2014, 27 Justice coal companies accumulated more than 23,000 water pollution violations at mines in West Virginia, Virginia, Tennessee, Kentucky and Alabama. The companies reached a settlement deal with the Environmental Protection Agency that included a $900,000 civil penalty and an agreement to implement an estimated $5 million in pollution control measures.

The deal also required the Justice companies to provide quarterly pollution reports to regulators. Selenium was not a pollutant covered under the agreement, court documents note. 

Bluestone argued that because of the 2016 agreement with the EPA, also known as a consent decree, environmental groups could not bring a citizen lawsuit against them over the selenium pollution. They argued the lawsuit  “would create undue interference” with the federal deal. 

In his opinion issued Wednesday, U.S. District Court Judge David Faber disagreed. In his 29-page ruling, he sided with environmental groups and questioned whether the 2016 EPA agreement did enough to prevent the Justice coal companies from polluting. 

The company “continues to be in consistent non-compliance with the terms of its selenium permits despite facing these general penalties for violations and repeat violations,” wrote Faber, who sits on the bench of the U.S. District Court in the Southern District of West Virginia. 

The consent decree’s penalties, he continued,  “have not remove[d] or neutralize[d] the economic incentive to violate” the environmental regulations related to selenium. 

A request for comment from Bluestone or its lawyers listed on the court docket was not immediately returned. 

Environmental groups are seeking additional penalties for the selenium pollution. In court filings, the groups estimate the maximum civil penalty under the Clean Water Act for Bluestone’s violations could top $160 million. 

In an emailed statement, Vivian Stockman, executive director of the Ohio Valley Environmental Coalition praised the court’s decision to allow the case to proceed.  

“The opinion underscores why it is so important to maintain fair and impartial courts as an independent branch of government,” she said. “Not even our billionaire governor is above the law and his businesses must be held accountable for polluting our waters.”

 

Ohio Valley Environmental Coalition Founder Dianne Bady Dies

The Ohio Valley Environmental Coalition says its founder, Dianne Bady, has died of cancer.

The environmental and social justice group started by Bady in 1987 announced her death in a statement Tuesday. She was 67.

The statement says Bady died Monday at a hospice house in Huntington.

In 1987, Bady and others organized to thwart efforts by BASF Corp. to burn or bury toxic waste near Huntington.

Among her targets as director of Huntington-based OVEC, Bady tackled pollution, mountaintop removal mining and fought off construction of a pulp mill in Mason County.

OVEC executive director Natalie Thompson says Bady had “a tireless commitment to our environment and our people.”

Environmental Group Names New Director

A West Virginia-based environmental group is naming a new leader to replace its executive director, who is retiring.

The Ohio Valley Environmental Coalition announced the departure of Janet Keating and the new role for Natalie Thompson on Monday.

Keating worked with the group for 24 years, including nine as executive director.

Thompson will assume the executive director role starting Oct. 1. The Beckley native has lived in Huntington for 13 years. For two years, she has been a project coordinator for the coalition’s promotion of public financing of elections and energy efficiency policy.

The coalition has fought a variety of projects due to environmental impacts, including filing lawsuits over the impact of mountaintop removal coal mining sites on adjacent waterways.

Action Groups, Experts, Mom Look Back and Forward After Chemical Spill

Leaders of citizen groups, a water scientist and an impacted mother held a phone-based news conference this week to look back on the crisis and outline the progress, pitfalls and next steps in their work to ensure safe drinking water for all West Virginians.

On the call:

RECAP:

Executive Director of the Ohio Valley Environmental Coalition, Janet Keating started the call off with a recap of events that lead to state legislation, SB 373, and Freedom Industry’s bankruptcy and subsequent indictments.

Executive Director of the West Virginia Rivers Coalition, Angie Rosser reflected that there was plenty of blame to go around when it came to a chemical spill that could taint drinking water of 300,000 people.

“I don’t think it’s any one person,” Rosser said, “it’s the whole system and the politics in West Virginia that have for decades set us up, in my opinion, for this kind of catastrophe.”

TODAY:

According to a survey conducted over the summer by the social justice organization WV FREE, 80 percent of voters said they are concerned about toxins in public water sources. Many West Virginians are now heavily embracing a cultural standard of living off of plastic-bottled water. (Bottled water which, in addition to not being free, doesn’t happen to be regulated under the Safe Drinking Water Act.)

The lack of public confidence is understandable, according to aquatic biologist Dr. Ben Stout from Wheeling Jesuit University. Stout pointed out some of the concerns he was left with after the spill, including how alarming it was that, “if it hadn’t been for the smell, for our human ability to detect small quantities of 4-MCHM, we would have never known that this whole community was exposed to a potentially toxic material.”

It’s a troubling realization, Rosser–from the Rivers Coalition–said, especially in light of the findings of recently implemented above-ground storage tank inspections.

Rosser: “The first round of inspections were completed by January 1, just a few days ago. And what was revealed this week to the public is that of those inspections that have been submitted,1,100 of those did not pass inspection. They’re deemed ‘not fit for service.’ That shows us that there are still tanks out there that may be leaking today.”

The discussion also encompassed some happy lessons learned in light of the spill.

  • Ben Stout talked about the abundant scientific resources in the region who sprang to respond;
  • Rosser said she saw progress from state officials who, for the first time, started to consult with citizen action groups in the wake of the crisis.

TOMORROW:

Rosser posed the question: “Will the public remain active?”

Looking forward, groups discussed anticipated legislative hurdles like funding Source Water Protection Plans and safeguarding other protective water laws and regulations.  

“The legislation and the progress that we saw over the last year could not have happened without citizen involvement,” she said.

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