EPA faces potential suit over lax oversight




By Ken Ward Jr.
Staff writer

CHARLESTON, W.Va. — National and state citizen groups are threatening to sue the U.S. Environmental Protection Agency for not stepping in to force West Virginia regulators to clean up hundreds of polluted streams.

On Friday, lawyers for the Sierra Club, the West Virginia Highlands Conservancy and the Ohio Valley Environmental Coalition sent their formal notice of intent to sue to EPA headquarters in Washington.

Read more…





Written by Administrator in: EPA,Water Quality |

West Virginia’s streams are in trouble


More than 40 percent of West Virginia’s rivers are too polluted to pass simple water-quality safety thresholds. They are too polluted to be safely used for drinking water or recreation, or to support healthy aquatic life.

This is due in large part to pollution from decades of mining. From ongoing pollution from active mountaintop removal mines and toxic discharges from poorly reclaimed mines, the quality streams of West Virginia has never been more degraded.


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Written by Administrator in: Selenium,Water Quality |

EPA Settles Clean Water Act Case for Wetlands Violations in West Virginia


Release Date: 11/29/2012

Contact Information: Donna Heron 215-814-5113 / heron.donna@epa.gov

PHILADELPHIA (Nov. 29, 2012) – The U.S. Environmental Protection Agency announced today that it has entered into a Clean Water Act (CWA) administrative consent agreement and final order (CAFO) with PDC Mountaineer, LLC (PDCM) to resolve violations involving construction activities at Marcellus Shale gas extraction facilities in northern West Virginia.

The settlement requires PDCM to pay a penalty of $177,500. Also, the company is restoring and/or completing mitigation projects at four sites pursuant to three separate CWA administrative orders incorporated into the CAFO.

EPA conducted two site inspections on December 11, 2011, and March 28, 2012 at the D’Annunzio Well Pad and the Hudkins Well Pad in Harrison County, W. Va. Section 404 of the Clean Water Act requires persons wishing to discharge fill material into wetlands or streams to obtain a permit from the U.S. Army Corps of Engineers. In this case, the company failed to apply for or receive a Section 404 permit. In addition, information subsequently provided by the company revealed more violations along the course of two pipelines which will ultimately transport gas extracted by PDCM.

Unpermitted activities included the filling, relocating and placement of culverts in streams and the filling of wetlands. The violations at the four sites resulted in adverse impacts to nearly an acre of emergent and forested wetlands. There are permanent impacts to more than 1,500 linear feet of stream, and temporary impacts to more than 3,000 linear feet of streams. Mitigation for the wetland and stream impacts includes a combination of restoration, mitigation, and the purchase of wetland credits from a mitigation bank. The affected wetlands and streams ultimately flow into the West Fork River, which is part of the Monongahela River Basin.

Wetlands are a scarce resource in West Virginia, occupying less than 0.4 percent of West Virginia’s land surface area. Since 1780, over 24 percent of West Virginia’s wetlands have been lost. Wetlands are vital to protecting the integrity of our rivers and estuaries by providing a natural filtration system for pollution before it gets into rivers, lakes and ponds, and by preventing flooding after storms. They also provide important fish and wildlife habitat. While progress has been made in recent years to reverse the trend, wetlands continue to be threatened.

The streams involved in this case were mostly headwater streams, the small creeks and streams that are the origin of most rivers. Headwater streams function to store floodwater, reduce sediment, and provide an important source of freshwater dilution to downstream waters.

PDCM is headquartered in Bridgeport, W.Va, and is a joint venture between PDC and Lime Rock Partners, L.P., a private equity firm. It was formed to explore and develop Marcellus Shale gas deposits.

As part of the settlement, the company did not admit to violating the CWA.

For more information about wetlands and permitting requirements:




Written by Administrator in: EPA,Marcellus Shale Gas Drilling,Water Quality |


By Cindy Rank

On September 28, 2012 seven citizen and environmental groups represented by Appalachian Mountain Advocates and Earthjustice filed papers to appeal the National Mining Association (NMA) court decisions in the U.S. District Court for the District of Columbia.

WV Highlands Conservancy joined Sierra Club, Ohio Valley Environmental Coalition, Coal River Mountain Watch, Kentuckians for the Commonwealth, Southern Appalachia Mountain Stewards and the Statewide Organizing for Community Empowerment in filing as Defendant Intervenors in support of the appeal filed by the Environmental Protection Agency (EPA) on September 27th.

The debate revolves around EPA’s conductivity guidance and the EPA-Corps joint permit review procedure known as the Enhanced Coordinated Process or ECP.

The ECP memorandum was issued in June 2009 and the Guidance was first proposed in April 2010 and later finalized July 1 2011.

Both EPA actions have been challenged from the get-go by the National Mining Association, individual coal companies and none other than the state of West Virginia among others.

The litigation has been written about in previous editions of the Highlands Voice (– most recently John McFerrin’s page 3 article in September 2012). And positions advanced by industry in the litigation have been used as part of the excuse for the outrageously deceptive cries about the imaginary “War on Coal”.

At the heart of this legal challenge is an ECP interagency review process that EPA and the Corps are conducting in partnership, along with a policy guidance issued by EPA Administrator Lisa Jackson in April 2010. The interagency review and policy guidance aim to ensure compliance with the Clean Water Act and to strengthen the role of science in reviewing applications for mountaintop removal coal mining permits. The guidance also provides scientific information to help regulators prevent irreversible damage to Appalachian watersheds at risk from mining.

On July 31, 2012 the district court ruled against the EPA saying that the agency exceeded its authority under the Clean Water Act by providing statements on these issues to its staff via guidance, instead of (1) issuing a federal water quality standard [for conductivity] under section 303 of the Clean Water Act; and (2) issuing a federal rule requiring that a reasonable potential analysis happen before a 402 NPDES water permit can be issued.

We are now asking that the appeals court reverse the district court’s ruling and reaffirm EPA’s authority to issue this guidance and flex its muscle in providing much needed protection for the waters of the nation that have been buried, bruised and otherwise abused by the coal mining method that blasts apart mountains and pollutes streams.

[It should be noted that the July 31st decision did not address or undermine the science on conductivity or harm to water quality, and did not undermine EPA's ability to continue following the basic requirements of the Clean Water Act themselves. The main outcome is that this court decided that EPA needed to issue a formal rule rather than a mere guidance, guidance which we continue to believe is within the authority granted by the Clean Water Act.]

Previous to this latest court decision the same Judge in a January 13, 2011 ruling in related motions in this litigation wrote:

“While it may be true that the challenged EPA actions were “designed to significantly reduce the harmful environmental consequences of Appalachian surface coal mining operations, while ensuring that future mining remains consistent with federal laws.” these environmental interests – the actual environmental impact of surface mining – are not currently before the court.

“It may well be that [EPA's actions] are necessary to protect the environment, especially considering the assertion made by counsel for the defendant intervenors [environmental groups] that the substantive requirements of the Clean Water Act were essentially ignored by the prior Administration, but the Court need not make that assessment now.

“Whether the current or the prior Administration’s actions are in compliance with the APA and the Clean Water Act is an inquiry that can be left for another day.”

As stated in a previous article, when science indicates harm is being done to streams below valley fills throughout the region it is time. no past time, to heed the sage warnings of another judge, Fourth Circuit Judge Wilkinson, who noted in his dissent in a closely divided Fourth Circuit decision involving our earlier litigation about particular individual mountaintop removal mining permits [OVEC v. Aracoma Coal Co., 567 F.3d 130, 133 (4th Cir. 2009) (Wilkinson, J., dissenting from denial of rehearing):

“West Virginia is witnessing in the Appalachian headwaters the long, sad decline that Virginia and Maryland have seen with the Chesapeake Bay. Once the ecologies of streams and rivers and bays and oceans turn, they cannot be easily reclaimed. More often than not, the waterway is simply gone for good.”

In this the 40th year anniversary of the Clean Water Act it’s particularly frustrating to watch industry continue to fight science and clean water protections required by the Act. Originally intended to minimize harm to the environment and in turn prevent harm to people and communities near mining operations, the CWA, and other federal environmental laws that address coal mining, appear to be unable to stop the devastation and prevent further harm to human communities near these operations. … There are now increasing numbers of scientific studies and bundles of anecdotal evidence that not only document significant harm is being done to the streams and environment, but also indicate that those mining operations are also a likely cause of some of our communities’ sickness, disease and other unexplained health impacts.

It is unconscionable that things have come this far.

come this far.

Written by Administrator in: EPA,The Highlands Voice,Water Quality |


By John McFerrin

On September 8, 2012, the West Virginia Highlands Conservancy, the Ohio Valley Environmental Coalition, and the Sierra Club (WV Chapter) sponsored a conference in Morgantown on Wellness and Water: Health Impacts of Fossil Fuel Extraction. About 100 people attended.

The conference was a combination of scientific presentations about health impacts and eyewitness accounts of what it is like to live near mining or drilling operations.

The keynote speaker was Wilma Surber. She is a scientist, with degrees in microbiology and chemistry and president of a company that does environmental testing.

After a brief overview of how hydraulic fracturing works, she dove into the heart of her presentation: what one is likely to find when testing air and water near drilling sites. She also discussed the health effects of exposure to these chemicals.

The information in the presentation was grim. She said that the Wastes generated by the exploration, development and production of crude oil and natural gas are “exempt” by Federal law from being regulated as hazardous waste. Yet 10 to 70% of the large volume waste and 40 to 60% of the toxic associated waste are Hazardous by analysis.

Her presentation included a listing of the contaminants that are present in what are known as “produced water” or “produced fluids.” This is the water that is present along with the gas and is brought to the surface as part of the producing the gas. They included organic chemicals, heavy metals, sulphur containing compounds, salt water minerals, and radioactive materials.

Although there is much contention among people and companies, she listed several items where there is agreement. She said that the oil and gas industry admits that there are spills and leaks which contaminate Surface water, ground water resources, soils, and air. The industry also admits that there are failures of casing and cementing that cause these impacts upon water, soil, and air. Casing is a series of metal pipes that extends from the surface to the producing formation. Cementing is the cement that is inserted between the casing and the rock it passes through. It is supposed to seal off the casing from the surrounding rock and any groundwater it might contain.

The industry stops short of admitting contamination of groundwater as a result of fracturing.

She also discussed surveys of health impacts felt by people who live close to gas wells or compressor stations. She presented a list of some forty two conditions which people had reported.

Her conclusion was that shale gas development has resulted in human health impacts to a large number of individuals living and working in the areas of shale development as well as large quantities of environmental damage and disruption

She further concluded that state regulatory programs are not adequate to regulate and control the rapidly developing shale technologies being implemented within the individual states.

In addition to the keynote speaker, the conference featured experts and academics Jill Kriesky, Ben Stout, and Michael Hendryx.

Michael Hendryx, Jill Kriesky, and Ben Stout Photo by Chuck Wyrostock

Dr. Kriesky, of the University of Pittsburgh Graduate School of Public Health, talked about the health impacts of hydraulic fracturing. She included discussion of a recent legislation that inhibits physicians from sharing information about possible health impacts of fracking. She recommended that there be more studies of potential impacts, implementation of air and water monitoring regulations at fracking sites, strong chemical disclosure regulations, and a health registry and public health education programs.

Mr. Stout talked about the importance of data collection. He recommended that anyone in a fracking area test their water daily for conductivity. If the water becomes contaminated there will be an immediate and dramatic increase in conductivity. He is also building a database of background water quality data. This makes it possible to know what the water was like before fracking.

Dr. Hendryx talked about the health impacts of mining, particularly mountaintop removal mining. He said that he has authored or co-authored more than twenty studies in peer reviewed journals that documented public health problems for people living near mining operations. He said that the health risks are greater for people living near the mines. This is true even after considering other health risks such as smoking, poverty, obesity, age, or access to health care. He called the epidemiological data of health impacts “overwhelming” and said that mountaintop mining should be stopped.

The most moving part of the conference was the descriptions of the problem by people who live near mining or drilling. Theirs were stories of ordinary people, just minding their own business, living their lives when they were intruded upon by drilling, mining, road dust, or a compressor station. They were of choking dust, noise that makes sleep impossible, and illnesses that they and their families had never had before.

If you missed the conference you can see most of it by going to http://www.youtube.com/watch?NR=1&v=vjDBCyf8Ypo&feature=endscreen. That takes you to one of the presentation as well as links to other presentations. Follow all the links and you will have seen the whole conference (minus introductions, question and answers, directions to the bathrooms, etc.)


Jim Oberstar, a founding father of the Clean Water Act, comments on the act’s 40th anniversary

St. Paul — Although he spent 35 years as a Congressman representing northeastern Minnesota, former U.S. Representative Jim Oberstar says one of his proudest legislative accomplishments took place before he was elected.

In late 1971, while on the staff of his congressional predecessor John Blatnik, Oberstar played a key role on the committee that wrote the Clean Water Act. This legislation became the cornerstone of environmental protection in the United States. In Minnesota, activities instigated under the Clean Water Act have transformed the Mississippi River from a dead river choked with sewage to a national recreation area.

See former Congressman Oberstar’s story on the 40th anniversary of the Clean Water Act at http://www.pca.state.mn.us/yhiz14ea.

More information on the 40th anniversary of the Clean Water Act, including historical photos of water pollution in Minnesota and a story on the act’s impact on Minnesota waters, is available on the Minnesota Pollution Control Agency website.

Broadcast version

This year the nation is celebrating the fortieth anniversary of the federal Clean Water Act. Former Congressman James Oberstar, who helped write the act while on the staff of his congressional predecessor John Blatnik, counts the act as one of his proudest legislative accomplishments.

The Clean Water Act became the cornerstone of environmental protection in the United States. In Minnesota, activities instigated under the act have transformed the Mississippi River from a dead river choked with sewage to a national recreation area.

See an interview with Congressman Oberstar on the fortieth anniversary of the Clean Water Act on the Minnesota Pollution Control Agency website.

Written by Administrator in: Federal Government,Water Quality |

Health effects near coal and gas sites documented, discussed


By Pam Kasey

More than half of people surveyed who live near shale gas extraction or processing operations in Pennsylvania report experiencing respiratory impacts, memory loss, lethargy or throat irritation, alone or in combination, according to environmental scientist Wilma Subra.

A microbiologist and chemist, Subra previewed a study she is conducting with the nonprofit Earthworks at a conference titled “Water and Wellness: Health Impacts of Fossil Fuel Extraction,” held Sept. 8 in Morgantown.


Read more…


WV’s and our nation’s future will depend more on clean water than coal

By Mike Withers WVHC Board Member


In northern WV we have areas where coal companies undermine our communities and family farms. While the mining activity provides dangerous jobs for a limited number of individuals the legacy costs(Subsidence and AMD) undermines our future. Taylor County provides great examples.

When citizens(TEAM) questioned ICG’s(now ArchCoal) post mining water control plans for their new nine the WV Surface Mine Board twice rejecteds their plan even though the WVDEP had approved them. Why, because expert witnesses testifieds that when the mining and water treatment stops the mine void will fill-up with water and AMD in form of new springs,seeps and/or blowouts will adversely impact Threefork Creek and Tygart lake.

This new threat comes as groups such as Save the Tygart install costly instream treatment facilities in the headwaters of Threefork Creek in an effort to deal with AMD caused by mining activity over fifty years ago. Tygart lake provides not only great recreation but is source of drinking water for much of the area.The Taylor County PSD’s water filtration plan is located at the base of the Tygart dam and serves citizens in Taylor and parts of the surrounding counties.

Sadly, the Surface mine Board did not approve a new plan but new poltically appointed members on Surface Mine Board accepted ICG”s assertions that no problems will arise.

The history of mining in the Kittanning seams in our areas says other wise. Virtually very mining site is experiencing post mining water quality problems.

WV’s and our nation’s future will depend more on clean water than coal.

Written by Administrator in: Mining Matters,Reclamation,Water Quality |

Doctors fight “gag orders” over fracking chemicals


By Alicia Gallegos, amednews staff. Posted Aug. 27, 2012

A physician’s lawsuit over a Pennsylvania statute concerning chemicals used in natural gas drilling is the latest battle involving industrial disclosure laws.

When several unrelated patients visited McMurray, Pa.-based plastic surgeon Amy Paré, MD, she initially was unsure what to make of the bleeding, oozing legions covering their faces.

The wounds were not cancerous, but the inflammation was severe and becoming worse. Dr. Paré’s suspicions grew when she learned that the patients lived near the same natural gas drilling site. Tests later found that the patients had phenol and hippuric acid in their urine, two contact irritants rarely found in humans. The patients improved after they stopped drinking water from their underground wells.


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Judge OKs corps permit for Logan County mine


By Ken Ward Jr.

CHARLESTON, W.Va. — In another significant legal victory for the coal industry, a federal judge on Friday refused to block a Clean Water Act permit for a mountaintop removal permit in Logan County.

U.S. District Judge Robert C. Chambers ruled against an effort by the Ohio Valley Environmental Coalition to stop the Reylas Surface Mine, proposed by Highland Mining, a subsidiary of Alpha Natural Resources.


Read More…

Written by Administrator in: Mountaintop Removal,Water Quality |

Water & Wellness Conference

Media Advisory                                                                                             Aug.  27, 2012


Robin Blakeman, Ohio Valley Environmental Coalition, 304-840-4877 or robin@ohvec.org

Cindy Rank, West Virginia Highlands Conservancy, 304-924-5802 or clrank2@gmail.com

Bill Price, Sierra Club, 304-389-8822 or bill.price@sierraclub.org

What:             Water and Wellness: Health Impacts of Fossil Fuel Extraction
Keynote speaker, panels, round-table discussions and stories from residents
impacted by deep shale hydraulic fracturing (fracking) and mountaintop removal
coal mining

When:             9a.m. – 1 p.m. September 8, 2012
Registration begins at 8 a.m.; Keynote speaker at 9:15 a.m.; Closing reception at 1 p.m.
Early registration online: https://donation.towercare.com/ovec-registration

Where:           First Presbyterian Church
456 Spruce Street
Morgantown, W.Va.       Location map  

Why:               Recent scientific studies and increasing anecdotal evidence point to dire human health impacts from both gas drilling operations and mountaintop removal coal mining. This conference seeks to highlight the findings of scientists and health professionals and the experiences of medically-impacted residents so that the general public can be better informed and involved. Will we face an impending health crisis in much of our region, or will citizen action ensure a healthier future?


Who:               Keynote speaker:

Dr. Wilma Subra, environmental scientist. Subra has degrees in microbiology, chemistry and computer sciences. She served as vice-chair of the EPA National Advisory Council for Environmental Policy and Technology and is president of the Subra Company.  She appears in the 2010 documentary Gasland.

Subra is available for phone interviews with reporters on Tuesday, September 4 at 337-367-2216.


Dr. Michael Hendryx, Professor in the School of Public Health, the Department of Health Policy, Management and Leadership

Dr. Jill Kriesky, Graduate School of Public Health, University of Pittsburgh

Dr. Ben Stout, Aquatic Biologist, Wheeling Jesuit University


Co-sponsors of this event:

OVEC, Ohio Valley Environmental Coalition

West Virginia Chapter of the Sierra Club

West Virginia Highlands Conservancy


More Info:     $10 suggested donation for general public

Flier: http://ohvec.org/events_calendar/09_08_Wellness-and-Water.pdf

Written by Administrator in: Water Quality |

90 artists recall Dunkard Creek’s bounty


By Mary Thomas / Pittsburgh Post-Gazette

The stench of death is always a signal that something has gone terribly wrong, and it became overpowering as artist Ann Payne approached Dunkard Creek in 2009. An art exhibition, brimming with wonder but underscored by sorrow, is testimony by 90 artists to what she saw.

“Reflections: Homage to Dunkard Creek” commemorates the thousands of living things that died when coal mine wastewater changed the chemistry of the waterway, producing a golden algae bloom. All gill-breathing organisms — fish, rare populations of mussels, amphibians — suffocated.

Read more…


Written by Administrator in: Mining Matters,Water Quality |


By Cindy Rank

The 2012 list of the Ten Most Endangered Rivers in America included two West Virginia rivers – the Potomac that flows through the eastern part of West Virginia into the Chesapeake Bay and Washington DC area, and the Coal that flows through several southern counties to the west where it joins the Kanawha River at St Albans and on into the Ohio from there.

Now in its 27th year, the Most Endangered Rivers list is issued annually by the national conservation organization American Rivers and highlights watersheds that are not necessarily the most polluted rivers in America, but are rivers at risk, rivers facing threats where key decisions in the coming months may well determine the rivers’ fates. The list is a call to action for members of the public to help ensure the best outcomes of those decisions.

The inclusion of both the Potomac and Coal Rivers is particularly timely with the nation commemorating the 40th anniversary of the Clean Water Act this year and Congress considering drastic rollbacks to clean water safeguards.

American Rivers ranked the Potomac as number one among the most endangered because of agricultural and urban pollution and other contaminants such as pharmaceuticals. Despite improvements over the years and widespread use of the river, the pollution will only get worse if Congress rolls back national clean water protections.

The West Virginia Highlands Conservancy joined Coal River Mountain Watch and the Ohio Valley Environmental Coalition in nominating the Coal River for a spot on the American Rivers’ Most Endangered list to once again shine a national spotlight on the threat mountaintop removal mining poses to clean water and public health.

The Coal River was also listed in 1999 and 2000, but this year’s call to action is for the public to urge Congress to restore protections to small streams and wetlands in West Virginia and across the country and to oppose the dirty water bill, Senate Bill 2245/House Resolution 4965, which would prevent the restoration of those protections.

For almost thirty years, the Clean Water Act was interpreted to protect small streams and wetlands from harmful pollution resulting from activities such as mountaintop removal mining, damaging floods, and other sources of pollutants. S. 2245/H.R. 4965 would effectively block the Environmental Protection Agency and the Army Corps of Engineers from finalizing proposed guidance to clarify the scope of the Clean Water Act and would ensure that the small streams and wetlands that are a source of drinking water for 117 million Americans will continue to be vulnerable to degradation and pollution.

As with the Potomac, improvements have been made to the Coal River over the past several years and use of and appreciation for the river has grown thanks to the efforts of many individuals, agencies and groups such as the Coal River Group – working predominantly in the lower half of the watershed.

But a realistic picture of the Coal River can’t ignore the very real problems that continue to exist far upstream in the headwaters of Spruce and Pond Fork and Clear Fork, Marsh Fork and other tributaries where stream valleys are still being filled and selenium and sulfates and combinations of metals and salts from mining operations are gradually diminishing the quality of the water and the aquatic life in the streams that feed the downstream portions of the river.

Often buried and polluted by giant coal mining mountaintop removal operations, it is here in these headwaters where the life and health of the river begins. And it is here where the connections between the health of the environment and the health of the people are most apparent. Protecting these small streams is essential for the long term health of both.

Americans want and expect clean water that is safe for them to drink, clean for them to swim in, and healthy enough to support fish and wildlife. Upstream waters must be protected from pollution and destruction if we expect the Coal River itself to be fit for drinking, recreation, and wildlife.

“The America’s Most Endangered Rivers report is a call to action to save rivers that are facing a critical tipping point,” said Katherine Baer, Senior Director of the clean water program at American Rivers. “We all need healthy rivers for our drinking water, health, economy, and quality of life. We hope citizens will join us to ensure a clean, healthy Coal River for generations to come.”

For more about the list and what you can do visit American Rivers at

For the complete 2012 Most Endangered Rivers report:

Coal River specific:

Written by Administrator in: The Highlands Voice,Water Quality |

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