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States, citizens suing plastics industry, alleging greenwashing, misleading claims about recycling

James Bruggers, Inside Climate News — Wed, 19 Jun 2024 09:50:32 +0000

A collection of plastic pellets known as nurdles that washed up on a beach in Charleston, South Carolina. (Photo by Andrew Wunderley/Charleston Waterkeeper)

This article originally appeared on Inside Climate News, a nonprofit, independent news organization that covers climate, energy and the environment. It is republished with permission. Sign up for their newsletter here.

The plastic pellets washing up on beaches and in marshes around Charleston, South Carolina, became very obvious about five years ago.

Called nurdles, these pebble-sized particles that are the raw material for many plastic products floated, too, in the aquamarine waters of the harbor, many carried at high tide to Sullivan’s Island, known for its white sand and million-dollar homes, where they caused alarm.

“We had been working to enact single-use plastic bans and then we started to see this nurdle problem,” recalled Andrew Wunderley, the executive director of Charleston Waterkeeper, part of the national Waterkeeper Alliance, an environmental organization. “Now we had industrial-like plastic pollution.”

Andrew Wunderley, executive director of the Charleston Waterkeeper, an environmental nonprofit in South Carolina. (Photo by Cheryl Carmack/Charleston Waterkeeper)

So Charleston Waterkeeper joined with the Southern Environmental Law Center, a nonprofit law firm, and the Charleston-based Coastal Conservation League, to identify what they believed to be the source of the nurdles and then to take that company, Frontier Logistics, L.P., to federal court, in March 2020. A year later, the environmental advocates and Frontier reached a settlement that included $1 million to improve water quality in the Charleston Harbor watershed.

From South Carolina to California, nearly 60 lawsuits have been filed since 2015, mostly by citizens or environmental groups, targeting the plastics industry. The litigation comes amid a rapidly expanding body of scientific knowledge detailing how burgeoning plastics production damages the planet and threatens public health.

Most recently, attorneys general in Connecticut, Minnesota and New York have raised the stakes with their own plastics lawsuits, bringing with them considerable legal firepower.

And, in California, a two-year-old investigation by Attorney General Rob Bonta into the plastics industry and its claims about recycling shows signs of concluding, potentially resulting in a case pitting the largest state in the nation against one of the largest plastic makers in the world, ExxonMobil, and powerful industry trade associations such as the American Chemistry Council (ACC) and the Plastics Industry Association (PIA).

In late May, the ACC and the PIA filed their own lawsuits in U.S. District Court in Washington, D.C., objecting to Bonta’s effort to obtain through subpoenas certain internal documents from the associations, including some involving the controversial practice of “advanced” or “chemical” recycling, while claiming California was infringing on their first amendment rights to advocate for their preferred public policy.

Bonta’s media office declined to comment on the status of the California investigation. Still, in April, the attorney general told a Reuters reporter that a decision on whether to proceed with the plastics litigation could be made “within weeks.”

Typically, these plastics lawsuits attempt to hold the companies that use plastic packaging or stores that use plastic bags accountable for alleged deceptive marketing claims about the environment or recycling.

Most are still working their way through the courts, though some have been dismissed, and environmental advocates count a few victories, such as the nurdle case in South Carolina.

“There has been zero action at the state or federal level to stop pollution from the plastics industry,” Wunderley said, four years after the South Carolina settlement. “It’s left to the citizens to pick up the slack. When the state and federal government won’t act or haven’t acted, we can step in and hold these polluters accountable.”

Plastics lawsuits follow climate lawsuits

Plastic pollution has found its way to the highest mountains and deepest parts of the ocean, into the bellies of marine mammals, the placentas of new mothers and human blood. Made of more than 16,000 chemicals, there’s a growing field of medical research that links plastics to obesity, infertility, an increased risk of miscarriage, cardiovascular disease and cancers.

Plastic production continues to soar, with petrochemical companies producing 460 million metric tons of plastic in 2019, an amount that could triple by 2060, according to the Paris-based Organization for Economic Cooperation and Development. Across the globe, less than 10 percent gets recycled.

The plastics litigation follows an explosion of similar lawsuits responding to the global climate crisis. A report, compiled by the U.N. Environment Program (UNEP) and Columbia Law School’s Sabin Center for Climate Change, last year identified 2,180 “climate change” cases between 2020 and 2022 alone.

The climate cases are typically aimed at holding governments accountable to their climate commitments, challenging governmental action or inaction about emissions or adaptation to climate change—or attempting to establish liability primarily of fossil fuel companies for harm caused by the effects of climate change, such as extreme weather events.

The UNEP report found that the litigation had influenced policy in some European countries, but many cases in the United States have faced lengthy procedural delays and climate litigation has not yet translated into systemic shifts in climate governance.

The New York University School of Law launched a plastics litigation tracker in 2022 and has observed a variety of plastics-related lawsuits in federal and state courts. Plaintiffs have included individuals as well as environmental groups such as Greenpeace, Sierra Club and Earth Island Institute. Some cases, like the South Carolina lawsuit, cite provisions of the federal Clean Water Act. But others take on the industry on grounds that the plastic waste is a public nuisance, or that companies are making false claims about their business practices or products.

In one such early case, filed in Superior Court in California in 2018, a resident of Lafayette, a San Francisco suburb, targeted Keurig Green Mountain, Inc., now Keurig Dr. Pepper, and the recyclability claims for its individual serving plastic coffee pods, called K-Cups, in what became a class action case.

“From a false labeling standpoint, Keurig was almost as good as it gets.”

– Howard Hirsch, California attorney

The lawsuit alleged that most recycling facilities were not properly equipped to capture items as small as K-Cups and, even in rare cases where they could, they ended up in landfills because there was no recycling market for them.

Without admitting any wrongdoing, the company agreed in February 2022 to a $10 million settlement and to add a qualifying statement to its recyclability claims that it still uses: “Check Locally — Not Recycled in Many Communities.”

“From a false labeling standpoint, Keurig was almost as good as it gets,” said retired California attorney Howard Hirsch, the lead lawyer on that case and several other plastics lawsuits. “When we started that case, they had emblazoned in large letters on the box, ‘Have your cup and recycle it, too.’” The plastic pods had become controversial, he said, “and clearly, they were responding to the backlash over the environmental impacts of their packaging.”

A Keurig spokeswoman, Katie Gilroy, said the company is working with communities and recyclers to more widely recycle its coffee pods, and later this year, Keurig will offer a mail-back recycling program. The company is also testing pods of ground coffee pressed and wrapped in a compostable plant-based coating, she said.

Hirsch has also represented the California nonprofit environmental group The Last Beach Cleanup, which over the last five years has filed three lawsuits related to recyclability claims, settling two of them with the third still making its way through the courts.

The main connection he sees between plastics litigation and climate litigation is the source of the issue—the petrochemical industry—since nearly all plastics are made from fossil fuels, the same primary contributor to global warming.

“It’s really all part of the same story, with the petrochemical industry sort of shifting the blame for its operations and trying to make American consumers feel as though they are the ones that need to take responsibility for these companies,” Hirsch said.

Ross Eisenberg, president of America’s Plastic Makers, part of the American Chemistry Council lobby group, called the rise in plastics litigation “disappointing.” In a written statement, Eisenberg said that “legal action has diverted attention away from the importance of recycling. Regardless, we remain steadfast in our mission to advocate for effective policy, collaborate with communities, and invest in new technologies that help to increase plastics recycling for a cleaner, more sustainable future.”

Minnesota, Connecticut challenge Hefty bag maker

Beyond private civil lawsuits including class actions, state attorneys general are now filing lawsuits, raising the stakes, said Bethany Noll Davis, executive director of the State Energy & Environmental Impact Center, which manages the litigation tracker with the Guarini Center for Environmental, Energy & Land Use Law, both of which are housed at the NYU School of Law.

Significant recent filings, she said, came in Connecticut and Minnesota, where the attorneys general have sued the manufacturers of Hefty bags, Reynolds Consumer Products.

In the Minnesota case, filed in June 2023, in state court, Minnesota Attorney General Keith Ellison claims the bags are marketed for collecting waste plastic to be recycled. But, according to the complaint, “the otherwise recyclable items placed into the bags do not get recycled, and that the bags themselves are not recyclable anywhere … when contaminated by waste residue.”

Keith Ellison

The Connecticut lawsuit, filed in January 2023 in state court in Hartford, claims that any Hefty bags containing waste plastic are in practice “diverted to landfills or incinerators.”

Reynolds Consumer Products did not respond to requests for comment on the lawsuits.

New York Attorney General Letitia James filed suit in November against PepsiCo Inc., claiming the food and beverage giant had harmed the public and the environment with its single-use plastic packaging.

“PepsiCo has long known of the harms caused by its single-use plastic packaging, acknowledging on its website that there is a ‘plastic pollution crisis’ and that its own packaging has ‘potential environmental impacts,’” the lawsuit claims. “By its continued manufacturing, production, marketing, distribution, and sale of vast quantities of single-use plastic packaging, PepsiCo has significantly contributed to, and continues to contribute to, the existence of a public nuisance that injures the community living in the city of Buffalo and surrounding area,” according to the lawsuit.

A PepsiCo representative responded in a written statement: “Packaging waste is a serious issue that requires collaboration from many stakeholders. PepsiCo is focused on being part of the solution and is pursuing goals to improve and enhance recycling programs.”

A dearth of federal policy on recycling complicates matters and invites litigation, said Steven Cook, an attorney with the law and government relations firm Bracewell, with clients that include fossil fuel and other energy companies. He worked three years as a deputy assistant administrator for the Office of Land and Emergency Management with the Environmental Protection Agency, and more than two decades as a lead counsel at LyondellBasell, one of the world’s largest plastic, chemical and refining companies.

But plastics remain essential to society, he said. “Our modern society doesn’t run without (plastics). You can’t run a hospital without plastics. You can’t get to zero emissions from cars without plastics. Consumers … wanted packaging that does certain things.”

Companies, he said, are attempting to address the problem of plastic waste, “but Congress will make a policy choice at some point. Until they do then you go to the courts.”

Plastic makers’ liability questioned

Greenwashing cases against companies that use plastic packaging are scattered across the country, with their outcomes uncertain, said Alyssa Johl, vice president and general counsel at the Center for Climate Integrity, an environmental group seeking to hold fossil fuel companies and other climate polluters accountable for the damages they have caused.

In the future, plastics litigation appears headed toward the petrochemical companies that make plastic that gets turned into packaging or bags, she said.

The Center for Climate Integrity published a report in February that concluded “petrochemical companies, independently and through industry trade associations and front groups, have deceived consumers, policymakers, and regulators into believing that they could address the plastic waste crisis through a series of false solutions,” such as recycling.

When Bonta, California’s attorney general, announced his investigation two years ago, his office said it had issued a subpoena to ExxonMobil, seeking information relating to the company’s role in deceiving the public.

ExxonMobil responded with a denial.

“We reject the allegations made by the Attorney General’s office in its press release,” the company said at the time. “We share society’s concerns and are collaborating with governments, including the State of California, communities, and other industries to support projects around the world to improve waste management and circularity.”

That investigation has been kept tightly under wraps, but there are indications that Bonta could be investigating claims around both mechanical recycling, where waste plastic is sorted, cleaned, melted and molded into new plastic products, as well as what the industry now dubs “advanced recycling,” a term used to describe a variety of chemical-based, industrial processes, that seek to turn plastic waste back into basic plastics building blocks.

But so far such technologies remain unproven, and environmentalists say most of them are polluting, energy-intensive and ineffective, turning the waste into new, dirty synthetic gases or oils.

Meanwhile, legal experts expect to see a new genre of plastics lawsuits emerge dealing with how plastics may be making people sick as plastic breaks down into micro- and even more tiny nano-plastics, carrying toxic chemicals into the body.

With scientists raising alarms about plastics and health, it’s only a matter of time before the lawyers weigh in, said Davis, the executive director of the NYU Law School’s State Energy & Environmental Impact Center. “And the minute we find more out about that, I think we could see a new frontier of lawsuits,” she said.

Plastic pellets are scattered around a beach in Charleston, South Carolina. (Photo by Andrew Wunderley/Charleston Waterkeeper(

Lawsuit outcome ‘extraordinarily positive’

In South Carolina, Wunderley, the Waterkeeper, describes plastic as “Charleston’s dirty little secret,” affecting salt marshes, oyster beds and beaches. “We do cleanups and it’s almost all?plastic and almost all single-use plastic,” he said.

The company, without admitting any fault or wrongdoing, moved its nurdle-handling operations away from a pier in Charleston Harbor, according to the settlement agreement, and consented to prevent the pellets from its new facility from escaping into the environment and allowed for an independent audit of its control measures.

Wunderley said he still finds some nurdles when he patrols the harbor and tries to identify the source. But he considers the outcome of the 2020 lawsuit a success. The new $1 million Healthy Harbors fund has helped some low-income families near Charleston better maintain their septic systems, thereby reducing sewage overflows, and funded an urban gardening program. It has also helped keep the Charleston Waterkeeper program on the water and looking for sources of pollution.

It’s part of an ongoing effort, Wunderley said, to take a bite out of Charleston’s “little sliver of this global plastic pollution crisis.”

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Louisville moves toward cleaning up ‘Gully of the Drums’ after more than four decades

James Bruggers, Inside Climate News — Tue, 11 Jun 2024 09:50:13 +0000

Sam Satterly investigated a hazardous waste dump known as the “Gully of the Drums” in Jefferson Memorial Forest, a Louisville public park, while she was a graduate student at the University of Louisville. (Photo courtesy of Sam Satterly)

LOUISVILLE — City officials are taking their first public step toward cleaning up hazardous waste in a popular park after a local graduate student last year called out a 45-year comedy of errors by federal, state and local agencies that allowed the dumped drums and chemicals to escape remediation.

Louisville parks officials have a $68,000 plan to dig trenches and take soil samples in an area dubbed “Gully of the Drums.” The site sits about 700 feet from the notorious “Valley of the Drums,” where some 17,000 hazardous waste drums were discovered in the late 1970s on farmland 17 miles south of downtown Louisville, which were removed in one of the first major federal Superfund cleanups in the United States.

The EPA didn’t clean up the much smaller Gully of the Drums at the time. At least twice since then — after the Environmental Protection Agency had declared the Valley of the Drums cleanup a success — Kentucky environmental regulators and EPA officials found pollutants lingering in the soil above health and safety levels that would normally spur remediation.

But at the site, which is in a public forest preserved as a tribute to area veterans, as many as 40 to 45 barrels remain in the woods, leeching what’s left of their toxic contents into the soil. The new study, if approved by the Louisville Metro Council, will involve taking soil samples near the visible drums as well as digging trenches to see whether unseen barrels or containers of toxic waste were also buried, and then testing the soil to see if that area has hazardous waste.

The Louisville Metro Council Thursday night received the proposed site assessment plan and referred it to its parks committee for review next week. That action alone signals that the city government is starting to take responsibility for a situation that most recently was brought to light by Sam Satterley, an Iraq War veteran and former graduate student at the University of Louisville.

In December, Satterley completed research on both dump sites as part of a graduate degree she earned in sustainability. Her thesis revealed previously untold stories about the origins of the Gully of the Drums — and how it shares a connection to the Valley of the Drums.

“When I saw it (the site assessment plan) on the council agenda, I was completely overwhelmed,” said Satterly, who has detailed decades of missed opportunities to clean up the Gully of the Drums.

She noted that the company poised to get the contract, Shield Environmental, did a similar site evaluation over a decade ago, wrapping it up in 2011, and found contamination that exceeded what would normally trigger a cleanup.?

The Gully of the Drums in Jefferson Memorial Forest. (Courtesy of Sam Satterly)

But at that time, state environmental regulators, who had commissioned that study, dropped the ball and did not require a cleanup.

“I want to make sure this doesn’t fall through the cracks again,” Satterley said Friday.

Officials with the parks department and in the office of Mayor Craig Greenberg did not respond to several requests for comment on Friday.?

But in their request for the funding, city officials said Shield’s services “are critical” to the environment and “a remediation plan or cleanup of hazardous materials will be the likely outcome.”

For Louisville Metro Councilman Dan Seum Jr., whose district includes the memorial forest, cleaning up the hazardous waste is important for helping visitors feel safe at a time when he and other officials are making the park a regional destination.

“I believe we will get a good investigation and advice” from Shield, Seum said Friday. “I want to make sure (the forest) is environmentally safe.”

Seum said he also wants to make sure the environmental investigation is transparent, with results made public.?

He said language in the company’s proposal about needing a “non-disclosure agreement” or “confidentiality agreement” to “ensure that any information discovered related to on-site waste materials is not shared” beyond the project’s parties is confusing. “I’m going to look into that. We want it to be open.”

Greenberg, the Louisville mayor, has been previously criticized for his administration’s use of non-disclosure agreements.

Images of Valley of the Drums, along with the frightening revelation of chemical plant dumping in Love Canal, near Niagara Falls, led Congress in 1980 to pass the Comprehensive Environmental Response, Compensation, and Liability Act, commonly known as Superfund. The law taxed chemical and petroleum industries to pay for the program and EPA got the authority to directly respond to toxic dumps that threatened the public or environment, and then assess cleanup costs on the “responsible parties.”

Despite the Valley of the Drums cleanup, the dumping in what would become Jefferson Memorial Forest was never cleaned up.

Across the country, there are likely many such smaller dump sites such as the one in Jefferson Memorial Forest that “fell off the charts and went into oblivion” as EPA and states were inundated with reports of toxic dumps to investigate in the 1980s, said Louisville environmental attorney Tom FitzGerald, who has looked into legal issues related to the site.

In its 2011 report, Shield noted drums and other containers scattered along 300 feet of the forest floor. By then, the liquid wastes were gone, but testing of the soil near the drums found pesticides, PCBs and a mix of heavy metals at levels over what would normally require agency action.?

As recently as 2016, state environmental regulators had described Gully of the Drums as “an imminent threat to human health and the environment.”

One of Satterley’s professors, Lauren Heberle, chair of sociology and an expert on Superfund cleanups, said she’s “very encouraged” that Louisville is poised to complete the original Shield environmental assessment from almost 15 years ago.

But she said the plan, which doesn’t call for new testing of groundwater or a nearby creek, “seems like a missed opportunity.” She also questioned why the project’s scope also does not include looking for the presence of PFAS or other toxic substances that they might not have been asked to test for before.

The proposal said that the previous study did not find contamination in groundwater or the creek at levels that warranted action. The new proposal assumes “nothing has changed dramatically” since 2011, Heberle said.

Heberle credited Satterley’s research and public presentation for spurring action. “I’m glad to see Louisville Metro government take responsibility for completing the assessment and hope they will also follow up on remediation in a way that cleans the site of any remaining toxic or hazardous materials.”

EPA cleaned up Valley of the Drums 45 years ago, but left behind Gully of the Drums

James Bruggers, Inside Climate News — Wed, 03 Apr 2024 09:50:29 +0000

LOUISVILLE —When the U.S. Environmental Protection Agency responded to a “surface water pollution emergency” on farmland 17 miles south of downtown in 1979, federal officials joined state regulators in removing 17,000 barrels of hazardous waste from an illegal dump site. It would become notorious nationally as the “Valley of the Drums.”

But the EPA didn’t do anything about dozens of other hazardous waste containers strewn in a nearby forested hollow, about 700 feet away, in what eventually became dubbed the “Gully of the Drums,” even though a local court had ordered a cleanup.

At least twice since then — after EPA had declared the Valley of the Drums cleanup a success — Kentucky environmental regulators and EPA officials investigated the Gully of the Drums. They found pollutants lingering in the soil above health and safety levels that would normally spur a remediation.?

But again, nothing was done, leaving what is now a public park preserved as a tribute to area veterans, the Jefferson Memorial Forest, unremediated to this day. Forty to 45 barrels remain in the woods, leeching what’s left of their toxic contents into the soil.?

These are the conclusions of new research by Sam Satterly, a 35-year-old Iraq War veteran who found records about the Valley of the Drums, and its country cousin, in a nearby public library and spent the past two years digging into them.?

In December, Satterly completed her research on both dump sites as part of a master’s degree she earned in sustainability from the University of Louisville and has summed up her findings on a website she created. Her thesis has revealed previously untold stories about the origins of the Gully of the Drums — and how it shares some connections to Valley of the Drums.

Satterly has also documented how local, state and federal agencies dropped ball after ball after ball, allowing chemicals to seep into the ground at the Gully of the Drums and raising concerns about pollutants that may spread through a nearby waterway. The Jefferson Memorial Forest is a 6,600-acre sylvan landscape known for its steep hills and hardwood canopy of beech, maple and oak trees, and an understory of flowering dogwood and redbud trees.

“This forest holds a special place in my heart,” Satterly said in an interview at a coffee shop, as she sifted through documents she had obtained via the Kentucky open records law, the federal Freedom of Information Act and court files. “It has offered me sanctuary in times of anguish, and peace in times of sorrow.”

The forest has served as a memorial to veterans since 1948, and, she said, “sadly, we have treated it, in many ways, like a forgotten military veteran.”

An ‘imminent threat’?

The story of the Valley of the Drums is well known. Images of the massive stockpile of drums scattered on 23 acres of farmland in Bullitt County, along with the frightening revelation of chemical plant dumping in Love Canal, near Niagara Falls, led Congress in 1980 to pass the Comprehensive Environmental Response, Compensation, and Liability Act, commonly known as Superfund.?

The law taxed chemical and petroleum industries to pay for the program and EPA got authority to directly respond to toxic dumps that threatened the public or environment, then assess cleanup costs on the “responsible parties.”

The Gully of the Drums contains an estimated 40 rusting barrels inside Jefferson Memorial Forest. (Photo courtesy of Sam Satterly)

The Gully of the Drums, however, remains largely unknown, even to people who live nearby and are in positions of authority.?

It’s a lot smaller, to be sure; official estimates have pegged the number of visible waste barrels at 40 to 45. Consultants working for the state, Shield Environmental Associates Inc., in 2011 found the drums and other containers strewn along swaths of the forest for about 300 feet, just across the county line in Jefferson County, which includes the city of Louisville. Other, buried metal and potential waste was strewn along another 100-foot stretch.

From what they could determine, there was evidence of elevated levels of heavy metals and pesticides. And, as recently as 2016, state environmental regulators had described Gully of the Drums as “an imminent threat to human health and the environment.”

Still, the Louisville Metro Councilman whose district includes Jefferson Memorial Forest, Dan Seum Jr., was unfamiliar with an old hazardous waste dump there, a spokeswoman said recently, declining further comment.

“I had no knowledge of the issue,” said Cindi Fowler, a lifelong resident of the nearby community of Valley Station, when shown a summary of Satterly’s research and conclusions. Fowler has served 12 years on the Louisville Metro Council and chairs the council’s Parks and Sustainability Committee. “This should have been addressed way before now.”

She said she wants more information from the administration of Louisville Mayor Craig Greenberg, a businessman-turned-politician who has promised to make Louisville’s government more transparent.

Greenberg’s media team declined to make any city officials available for interviews on the Gully of the Drums situation, or to release a new report on the dump site that a state official had told Satterly about.

A written statement from Greenberg’s spokesman, Kevin Trager, downplayed any threats to the public from the contamination and said the city’s parks department “continues to collaborate” with the Kentucky Department of Environmental Protection “and is committed to being proactive if further action is needed.”

The Kentucky Energy and Environment Cabinet, which includes the state’s Department for Environmental Protection, also declined to answer specific questions about its management of issues related to the Gully of the Drums. But the state cabinet’s statement said it was working toward a cleanup.

The agency “is committed to a safe and clean environment for all Kentucky families and is working with Louisville Parks and Recreation, owner of forest, to clean up the site,” the statement said, while acknowledging the contamination reported in the 2011 report. The statement said that as of that year, there was no impact on “ground or surface water.”

‘Gray’ and ‘green’ liquid waste

Satterley’s interest in the Jefferson Memorial Forest goes beyond her love for it as a place of personal refuge and renewal. She also works for Louisville Metro Parks as the forest’s guest services supervisor.?

She wants to make sure that everyone, including her employer, understands she is speaking out as a recent graduate researcher and private citizen about her research and conclusion that the Louisville Metro Government has an obligation to clean up Gully of the Drums. The city of Louisville merged with Jefferson County in 2003.

“My belief in doing the right thing is supposed to be hard,” Satterly said. “I understand that this can has been kicked down the road for decades. But knowing that something is wrong, and looking the other way, makes you guilty, too.”

Satterly found records show the same person who had created the Valley of the Drums in the 1960s, the late A.L. Taylor, was also dumping waste at about the same time on the neighboring property that would become Gully of the Drums.

By the end of the 1960s, Jefferson County had agreed to clean up the mess following a legal dispute over the property’s ownership and claims that county officials had allowed the dumping. But there’s no evidence any cleanup ever happened.

One of the key questions, Satterly said, is why EPA left the “Gully” waste in place when it was taking action on the larger problem so close by. Any check of local court cases would have revealed the Gully of the Drums dumping by Taylor and the court-ordered cleanup.

Regional EPA officials in Atlanta declined to comment for this story and specifically answer a question about why the Gully site wasn’t part of the Valley of the Drums remediation.

Records unearthed by Satterly indicate state and EPA officials discovered the Gully of the Drums in the early 1990s, and that after an assessment of the site, EPA passed responsibility for its cleanup to the state.

At the time, officials described drums or containers with “gray” or “green” liquids, and testing found toxic compounds typical of petroleum distillates including toluene, ethylbenzene and xylenes, as well as polychlorinated biphenyls (PCBs). PCBs are considered to be probable human carcinogens that were banned from commercial production in the United States in 1979.

A followup inspection by the state in 2006 identified toxic heavy metals, in the soil at elevated levels, including cadmium and lead.

The (Louisville) Courier-Journal published a story in 2008 about “discovery” of an estimated 40 rusting drums inside Jefferson Memorial Forest, and a push by state and federal regulators to get the extent of any pollution there evaluated and remediated.

That’s when Shield’s consultants were hired by the state to assess the risks and potential costs of cleanup. In their 2011 report, they noted drums and other containers scattered along 300 feet of the forest floor. By then, the liquid wastes were gone, but testing of the soil near the drums found pesticides, PCBs and a mix of heavy metals at levels in excess of what would normally require agency action.

The Shields consultants recommended excavation and disposal of the contaminated material and said some of it would likely require disposal in a hazardous waste landfill. They offered a cost estimate of about $900,000, but said it could be more once buried wastes at the site are tested.?

Sam Satterly, a recent University of Louisville graduate student, shuffles through public records that tell a story about a hazardous waste dump known as the Gully of the Drums. (James Bruggers/Inside Climate News)

Satterly also uncovered a 2016 letter from state officials to the Michigan chemical company Dow Corning, telling the company they had found containers with their company’s logo on them. The letter declared that the site was an “imminent threat to human health and the environment,” and told Dow Corning it needed to clean up the dump site.

Dow Corning, which was split up in 2016 and partially absorbed by Dow, the Michigan chemical company, replied that it had worked with state officials in 2012 and 2013 to address their concerns and had “submitted a proposal, with the agency’s knowledge, to the (city parks department) for participation in a possible response action. Your letter is the first communication we have received since then; it suggests that you are unaware of or indifferent to those discussions,” the company said.?

Dow Corning further said at the time that it did not believe it had any legal liability with regard to the forest dump site and would not commit to participating in a remediation. The company argued that the forest dump site “may properly be considered” part of the Valley of the Drums federal Superfund site, the company wrote.

State officials declined to answer questions about what happened to the cleanup talks they had with Dow Corning.

Federal cleanup money may be available

At the University of Louisville, Satterly’s graduate studies work earned high praise from her advisor, Lauren Heberle, an associate professor in sociology. Heberle directs the university’s Center for Environmental Policy and Management and is a lead investigator with the university’s Superfund Research Center, which is part of the National Institute of Environmental Health Sciences’ Superfund Research Program. The NIEHS program is designed to learn more about how exposure to hazardous substances found in contaminated water, soil and air affect people.

Heberle described Satterly’s research as “important” and gives her credit for taking on a thorny topic that reveals a problem that still needs to be resolved.?

“The significance of her work is that it is drawing attention to unfinished business that our local and state government agencies need to take responsibility for,” Heberle said.?

And, she added, her former student’s research is well timed and may qualify for federal grants. “The federal government is putting a ton of money into all sorts of federal programs,” she said, including some that fund cleaning up legacy pollution. She also said cleanup funds for the forest might qualify for Justice40 initiative spending by the Biden administration.?

Justice40 directs federal agencies to align their funding related to environmental cleanup, clean energy and climate mitigation so that at least 40 percent of the overall benefits go to disadvantaged communities.?

Heberle also urged transparency.

“Whatever site characterization happens, and water cleanup plans happen, the public should be brought in,” she said. “People think having information will scare the public unnecessarily. I think the opposite will happen.”

For her part, Satterly said she continues to be concerned about contamination getting into the stream, where children might wade or play, as she did in other local waterways when she was growing up in the Louisville area. She said she is also uncertain what will come of the site. On Friday, she will present her findings on the University of Louisville campus, and she’s making plans for at least one other public talk. She’s also pondering her next career steps and wondering if law school might be in the cards.

As for the Gully of the Drums, she said she remains hopeful.

“I can honestly say that for the first time in two years, I believe that the Gully will finally be cleaned up,” Satterly said. “I cannot put into words how that makes me feel, but it certainly makes my heart swell.”

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Congressional office agrees to investigate ‘zombie’ coal mines in Kentucky

James Bruggers, Inside Climate News — Fri, 12 Jan 2024 19:30:33 +0000

According to a new report from Appalachian Citizens' Law Center, this “zombie” mine in Pike County, Kentucky has not produced coal since 2019. (Photo by Erin Savage/Appalachian Voices)

LOUISVILLE, Ky. — With a federal investigation into technically active but non-producing “zombie” mines set to begin in March, a citizens law group in Kentucky has found production idled at nearly 40% of all active coal strip mines in the state, with some not mined in more than a decade.

In all, these “functionally abandoned” mines — 48 of 126 active mines — scar 19 square miles of the state, and leave behind a combined 15 miles of dangerous, blasted-away mountainside cliffs, called “highwalls.”

Strip mines are supposed to be reclaimed shortly after blasting and digging for coal, and leaving them alone poses risks to the public and the environment. Environmental advocates have for several years been attempting to quantify a problem that they say has worsened as the coal economy has crashed.

At the same time, coal companies in bankruptcy have stopped paying into industry funded programs meant to assure mines are stabilized and cleaned up so the coal industry does not leave behind polluted streams or dangerous highwalls on landscapes that were once forested and hosted critical headwaters.

In October, eight Democratic lawmakers, including one from Kentucky and two from Pennsylvania, called for a federal investigation into the full extent of environmental damage of the functionally abandoned “zombie mines,” which can leak toxic waste and send boulders into homes.

“Some coal companies are idling mines and stalling reclamation to cut costs,” the lawmakers wrote to the U.S. Government Accountability Office. “Because mine operators typically rely on coal revenue to fund reclamation, the longer a mine remains idle, the greater the risk that the operator may not have sufficient funds to pay for reclamation.”

On Thursday, a spokesman for the GAO, which conducts non-partisan investigations for Congress, said the agency has agreed to conduct the study, which will start in March.

“We worked with lawmakers to advocate for the GAO report,” and are pleased that it has been approved, said Rebecca Shelton, director of policy for the Appalachian Citizens’ Law Center, a nonprofit based in Whitesburg, Kentucky, which is in part of the state’s mountainous Eastern Kentucky coalfield.

These mines are a serious threat, “but the challenge is understanding how big of a problem is” across multiple states, she said.

The lawmakers — Reps. Matt Cartwright (D-Pa.), Don Beyer (D-Va.), Morgan McGarvey (D-Ky.), Jared Huffman(D-Ca.), Katie Porter (D-Ca.), Alexandria Ocasio-Cortez (D-N.Y.), Raul Grijalva (D-Ariz.) and Sen. John Fetterman (D-Pa.) — asked GAO to quantify the number, location and size of coal mines that have neither produced coal nor made reclamation progress, and their bonding status, as well as whether federal regulations may need to be updated.

Strip mining for coal in Central Appalachia is an environmentally violent process typically involving the clearcutting of forests and then the blasting of the tops or sides of mountains to get at buried coal. Waste rock can be shoved into headwater streams.

Reclamation can consist of backfilling and grading a mined area, eliminating unstable highwalls and mine waste, planting grass or trees, and managing and treating contaminated water that runs off the site. The federal Surface Mining Control and Reclamation Act of 1977 generally requires that mined land be returned to its approximate original contour.

The law also requires coal mining companies to secure bonds to cover the costs of reclamation should the companies go bankrupt.

The new report found that 27 of Kentucky’s functionally abandoned mines have not produced coal for over five years, and several have not produced coal for more than a decade. Nearly half of the zombie mines in Kentucky were located in one eastern Kentucky jurisdiction — Pike County, which borders Virginia and West Virginia.

The report concedes that some of the mines could have had some reclamation work done, but they could not detect much of a change in state records that track disturbed land.

In 2022, Inside Climate News found that as the coal industry collapsed, coal mining companies had racked up a rising number of violations at surface mines, and state regulators were failing to bring a record number of them into compliance, according to internal documents made public under the state’s open records law. One state official at the time described the situation as “completely out of control” in an email.

The new report recommended Kentucky regulators redetermine the required bond amounts for all functionally abandoned mines and make sure those revised bonds are sufficient to cover reclamation activities.

John Mura, spokesman for the Kentucky Environment and Energy Cabinet, which regulates mining and reclamation in the state, said he could not comment on the report Thursday. “We just received the report (and) we’re reviewing it.”

Shelton said answers are needed now.

“When coal companies stop producing from mines, they are legally required to clean up their mess,” she said. “These findings show they are delaying reclamation, maintaining mines in active status even though the likelihood that these mines will produce coal again appears very slim.”

She said that “it is essential that Kentucky’s regulators stringently enforce the law to ensure that coal companies maintain their responsibility for clean-up costs and communities don’t have to shoulder the burden of degrading mines in their backyards that companies leave behind.”

Lawmakers want answers on damage and costs linked to idled ‘zombie’ coal mines

James Bruggers, Inside Climate News — Fri, 20 Oct 2023 14:35:51 +0000

A surface mine in Floyd County operated by a bankrupt company is shown here in 2021 unreclaimed. Kentucky state officials said reclamation efforts have since begun. (Photo by James Bruggers)

Lawmakers, including Kentucky’s lone Democrat in Congress, are asking for a federal investigation into the full extent of environmental damage caused by what are known as “zombie” surface mines, which may technically still be considered active for coal extraction but have been idled for months or years and can leak toxic waste.?

For environmental and public safety reasons, coal mining companies are supposed to stabilize and repair damaged land surfaces as they mine and not wait until all their digging or blasting is done.?

But as the economy around coal mining has crashed over the last decade, giving way to wind, solar and natural gas, mining companies have gone through bankruptcies, and environmental advocates have noticed delays in the kind of reclamation that federal law requires.

Identical requests for an investigation — one from seven members of the House of Representatives and the other from Sen. John Fetterman, (D-Pa.) — were sent to the General Accountability Office on Thursday. The GAO is an ndependent, nonpartisan agency that works for Congress.

The House letter was signed by Reps. Matt Cartwright (D-Pa.);? Don Beyer (D-Va.);? Morgan McGarvey (D-Ky.); Jared Huffman(D-Ca.); Katie Porter (D-Ca.); Alexandria Ocasio-Cortez (D-N.Y.) and Raul Grijalva (D-Ariz.),? the ranking Democrat on the House Natural Resources Committee.

Both requests cited a potential risk to taxpayers.

“Some coal companies are idling mines and stalling reclamation to cut costs,” the lawmakers wrote to the GAO. “Because mine operators typically rely on coal revenue to fund reclamation, the longer a mine remains idle, the greater the risk that the operator may not have sufficient funds to pay for reclamation.?

“Further, there have been at least 68 coal company bankruptcies since 2012, which draws attention to whether financial assurances obtained by the Office of Surface Mining Reclamation and Enforcement and state agencies will be adequate to reclaim the land should the operators fail to do so. As a result, taxpayers may ultimately get stuck paying the bill.”

The GAO uses a standard process for deciding whether to launch an investigation, said Jessica Baxter, senior public affairs specialist with the agency. Among the factors are subject matter, workload, costs and benefits, according to the protocols.

The Democrats’ requests cover mining activities in the modern era, which began in 1977, when Congress passed the Surface Mining Control and Reclamation Act. It established federal regulations for surface mining, required mine reclamation and set forth bonding requirements to make sure reclamation occurs if companies go bankrupt.

The 1977 law also established the Abandoned Mine Land Reclamation Program and fund to address environmental damage from mines abandoned before 1977. The fund got a boost from Congress and President Biden in 2021 with the passage of the Bipartisan Infrastructure? Act, which allocated $11.3 billion over 15 years for abandoned surface or underground mine cleanups.

But the zombie mines are not covered by the Abandoned Mine Land Fund.

The nonprofit group Appalachian Voices researched those mines and published a report in 2021 that focused on a seven-state Appalachian region: Alabama, Tennessee, Virginia, Kentucky, West Virginia, Ohio and Pennsylvania.

The group identified some 633,000 acres in those states that need some degree of reclamation, with West Virginia, Kentucky and Pennsylvania needing the most.?

Appalachian Voices estimated that the total cost of outstanding reclamation for all seven states at the time was $7.5 to $9.8 billion dollars, and that required bonding programs were likely to be woefully inadequate to meet those financial needs. The group found only $3.8 billion in bonding money was available in those states.

As mining companies have gone bankrupt in the past, bankruptcy courts often found other companies to take over mines. But that’s getting harder to do, as the demand for coal for generating electricity has waned, raising the risks to taxpayers, environmental advocates said.

“Companies shouldn’t be able to shirk their responsibility to remediate with impunity,” Fetterman said. “With this information from GAO, we would be able to have an educated conversation about ways to improve the mine reclamation process to hold the coal industry accountable and keep our promise to our communities.”

Cartwright, who represents the coal mining region around Scranton, Pennsylvania, said that “these shuttered mines are liabilities that pollute our lands and our water and hold back economic growth. This investigation is the first step in turning mine blight into economic growth for coal-impacted communities.”

State agencies have also struggled to keep pace with the changing coal economy.

Inside Climate News reported last year, based on an analysis of public records dating to 2013, found that in Kentucky, financially struggling mining companies also were racking up a rising number of violations at surface mines, and that state regulators had failed to bring a record number of them into compliance.

In 2021, Inside Climate News reported that bankrupted coal mines left unreclaimed were among the potential long-term impacts of coal mining on the environment, with public concerns ranging from water pollution to falling rock.

“I think there is a problem with stalled reclamation, and underfunded mines and I feel pretty confident in that assessment,” said Erin Savage, author of the Appalachian Voices report, “Repairing the Damage: The costs of delaying reclamation at modern-era mines.”

?“But there are state agencies and others who disagree with me and say everything is fine. We think there needs to be a neutral party that can confirm or deny the stand of reclamation and bonding issues,” Savage

The findings could lead Congress or the Department of the Interior to take steps to make sure unreclaimed mines get reclaimed, she said.

The lawmakers have asked GAO to quantify the number, location and size of coal mines that have neither produced coal or made reclamation progress, and whether bonding or other financial assurances are adequate to address the problem.

They have also asked the GAO to assess whether federal regulations are effective at making sure idle mines get reclaimed in a timely manner.

They said they need the GAO’s help because coal mining regulations and oversight are spread across multiple state and federal agencies.

“Given this dispersion of responsibility and variation in record keeping, it is difficult to obtain a complete and accurate picture of the state of the coal mining industry as a whole,” they wrote.

“People living near mine sites have dealt with landslides, toxic water and harmful water runoff issues,” said Rebecca Shelton, director of policy for the Appalachian Citizens’ Law Center. “Citizen-led groups have been scrambling to research the scope of this crisis for years, but we need the resources of the federal government to investigate so that we understand the full extent of the problem and can craft the best solutions.”

Q&A: From coal to prisons in Eastern Kentucky and the struggle for a ‘just transition’

James Bruggers, Inside Climate News — Tue, 05 Sep 2023 09:50:18 +0000

The prison fence at the Southeast State Correctional Complex in Floyd County meets a road and open coal seam. (Photo by Jill Frank)

Every week, the expressions of love and support pour into Whitesburg, Kentucky’s Mountain Community Radio, WMMT, like messages in a bottle from friends and family to inmates incarcerated in the seven state or federal prisons within the reach of the station’s signal.

On a recent episode of the show “Calls from Home,” a woman told her man: “You know I got you. I couldn’t ask for a better husband.” Another caller said: “I love you with all my heart, forever and a day. Have amazing dreams. Good night. I love you.”

If the local Republican congressman, U.S. Rep. Hal Rogers, has his way, the federal government will construct another prison, this one near Roxana, a tiny Letcher County community 7.5 miles west of Whitesburg, potentially atop what’s left of a mountain after dynamite removed its top and coal was carried away.

As “Calls From Home” suggests, the prison business is booming in the mountains of Central Appalachia. The growth has occurred alongside the decline of the coal industry, with at least five prisons built atop old coal mines, said Judah Schept, a professor in the School of Justice Studies at Eastern Kentucky University, based in Richmond.

Judah Schept is a professor in the School of Justice Studies at Eastern Kentucky University. (Photo courtesy Judah Schept)

Schept is author of “Coal, Cages, Crisis: The Rise of the Prison Economy in Central Appalachia,” a 2022 book that examines how prisons became economic development strategies for rural Appalachian communities.

In all, there are 16 federal or state prisons in a Central Appalachian area that includes Eastern Kentucky, and parts of neighboring West Virginia, Virginia and Tennessee. Eastern Kentucky has eight of those, Schept said.

“Half of those eight are federal prisons, which is really unusual,” he said.?

Three of the four have been built since 1992, with the backing of Rogers, who has represented Kentucky’s 5th Congressional District for 42 years.

Rogers has been working to get a federal prison in Letcher County for nearly 20 years, already securing more than $500 million in federal funds. But, this is a prison that some in Rogers’ own party haven’t wanted; the Trump administration said it wasn’t needed, and in 2019, the Federal Bureau of Prisons withdrew its plans for a high-security penitentiary and prison camp on the former surface mine in Roxana, one with a potential inmate population of 1,400.

Then, last year, the Bureau of Prisons resurrected the proposal when it filed a notice to conduct a new environmental impact assessment. Rogers quickly praised the agency, saying at the time that “with more than 300 jobs on the line, it’s a battle worth fighting in a region where jobs are desperately needed.”

In July, opponents, including members of the group Concerned Letcher Countians, were furious to find out about language inserted by Rogers in an appropriation bill by the House Appropriations’ Subcommittee on Commerce, Justice, Science and Related Agencies, which Rogers chairs. It seeks to fast track the project in a way that would prevent further public comment or environmental review, and protect construction and operation of the prison from judicial review.

The surface mine site in Letcher County where a proposed maximum security prison would be located. (Photo by Jill Frank)

“The planning and work to build a federal prison in Letcher County has continued over the span of nearly 17 years,” Rogers said in a written statement. “During that time, every possible study has been conducted in Roxana, along with an abundance of public comments and thorough reviews from every angle. It only makes sense to reuse the studies, comments and reviews that have already been conducted, when possible, to save taxpayer dollars.”?

The debate over the proposed new prison comes in the aftermath of devastating flooding in the area in the summer of 2022.? Across Eastern Kentucky, the flooding was worse than ever, contributing to at least 44 deaths when up to 16 inches of rain fell from July 26 to 29, 2022, sometimes as heavily as 4 inches per hour. The result

was widespread devastation, including in Letcher County.

With the prison fight fully engaged, Inside Climate News spoke with Schept, who has been studying Central Appalachian prison issues for more than a decade. He said he has come to the conclusion that neither the federal government nor Eastern Kentucky needs more prisons.

The interview has been edited for clarity and length.

Your book mentions that most new prisons are being built in rural communities, but that Central Appalachia stands out. In your book, you refer to the term, “coal to cages.”? What is the connective tissue between the region’s coal mining legacy and locating prisons in distressed coal communities?

That connection happens in a lot of different ways. In the most self-evident way, I think there’s fewer coal jobs now than at any time since the industry began. I think there are about 4,000 coal jobs left in the state of Kentucky. That’s the lowest total since something like 1895. In contrast, there are now just about twice that many correctional officer jobs in the state of Kentucky. It’s something like 7,500.?

So the prison jobs have somewhat displaced coal jobs, or at least have grown during the same period that coal jobs have declined so precipitously. And of course, those rural prisons are proposed and built on those very (coal-mining) grounds. To hear how Rogers or other local prison boosters put it, the prisons are almost like a rural jobs program.?

There are a number of problems with that argument. One is that 7,500 correctional officer jobs is about a tenth of the number of mining jobs in the state of Kentucky during the height of the industry. The other issue with the jobs question, particularly at the federal level: Those jobs on the whole don’t necessarily go to local residents, for any number of reasons, not the least of which is that the requirements to be a correctional officer in a federal prison are relatively high.?

And then, of course, at least in a few places, mountaintop removal mining produces huge expanses of land on which people like Rogers or local county elites try to imagine all kinds of economic development opportunities, and at least in a few places, building prisons, which raises all kinds of environmental issues.

Is it a failure of imagination in the minds of Eastern Kentucky residents who advocate for prisons as economic development? Or, because the land has been pretty ravaged by mining, is it just harder to get other forms of economic development?

People who live in Letcher County who are opposed to the prisons have said they could have been pursuing all kinds of other potential options for economic development. And despite some of the challenges like in the realm of logistics or transportation, there are railroads everywhere. And, you know, something manufactured in a factory built in Letcher County where the prison is intended could conceivably be put on a train that day and shipped wherever, you know. So it is to an extent a failure of imagination, on the part of politicians and other county-level leadership, who just in some respects put all their eggs in one basket when it comes to the prisons.

How does prison development fit into the ongoing discussion of finding a “just economic transition” for coal communities like those in the region?

To me, and I think to a lot of activists in the region, a just transition requires, of course, shifting away from an extractive industry, but also doing so in a way that isn’t built on the backs of other poor people, marginalized communities and communities subjected to environmental injustices, the principles which would all be violated by building prisons. Any kind of thorough interrogation of what just transition means should lead someone to conclude that a prison does not belong in a just transition framework, on basic principles of economic, racial, environmental justice. The prisons themselves don’t address any of the ecological and environmental harms that have occurred in Eastern Kentucky and can’t begin to address them, and in some cases might exacerbate them.

Rep. Rogers has put some language in a bill that would limit or exempt environmental reviews for the proposed Letcher County federal prison. What do you see the Congressman trying to do with that? And what might the consequences be??

The language he introduced directs the attorney general to end the environmental impact study, and use the environmental impact study from 2018, which by definition would preclude the environmental impact study from accounting for changes to the county or the impact to the county from the (recent) floods.?

It instructs the attorney general to use the (Bureau of Prison’s) Record of Decision from 2018, which essentially means move forward with construction. And then it also says the actions of the AG and the director of the Bureau of Prisons should not be subjected to judicial review. So it’s thoroughly anti-democratic.

The historic Coal House was built in 1933 from 65 tons of bituminous coal in Williamson, West Virginia. (Photo by James Bruggers)

Moreover, language that’s about the operations of the prison not being subjected to judicial review is a little opaque to me. I’m concerned that would mean that that prison, or for that matter, potentially other prisons, and the actions inside of them, including various forms of violence, would not be subjected to accountability and transparency and review. So there’s all kinds of things about that language, that are really, really concerning.

You are also concerned about environmental consequences of not conducting a new environmental impact assessment, too, right? Please explain.

Well, we’re talking about $500 million in construction, right? It would be the most expensive federal prison ever built, built on a mountaintop removal site, in the middle of the coal fields a mile away from an existing mine, and an existing coal slurry pond in one of the counties hardest hit by the 2022 floods.?

An unreclaimed coal surface mine along the Kentucky-Virginia state line. (Photo by James Bruggers)

The consequences of that construction would have all kinds of impact for all kinds of flora and fauna, to say nothing of the potential humans who would be incarcerated there. So at the most minimum level of transparency and accountability and attention to ecology, there needs to be some kind of baseline environmental review process, like the one required under federal environmental law. And it’s just ludicrous to think that such a vastly huge construction project in this particular geography would move forward without it.

What would you say to people who might be thinking that society needs to put convicted criminals someplace? Why not in rural eastern Kentucky like the congressman wants?

I would dispute the premise. I would say we don’t need these places. I think we’ve built out our criminal justice capacity and infrastructure far too much over the last four decades. And we thoroughly need other things to address problems and harms and crises for which the prisons are the putative solutions. They are just not. They exacerbate all the things we think they might solve.?

Coal mining in 2019 in Letcher County. (Photo by James Bruggers)

Methane from underground coal mines upends rural West Virginians’ lives, livelihoods

James Bruggers, Inside Climate News — Wed, 05 Jul 2023 09:50:19 +0000

The Nestor farm in Taylor County, where methane from a coal mine below is being vented in a tall white pipe next to the back porch. Mining dried up the farm's water well, which the Nestors used to water their cattle, a lawsuit claims. (Photo by ames Bruggers)

THORNTON, WEST VIRGINIA.—Month-old kittens scamper around, tumbling into one another on the grass. A black-and-white border collie, Maggie, nestles against the side of a farmhouse and nurses a puppy. Beef cattle graze on the hillside behind the house, which has been vacant since last summer — when, without warning, the water well went dry.

At the time, Jim and Melissa Nestor were raising three boys on their farm in a lush green valley three miles south of Thornton, a town along U.S. Highway 50 with a church, a towing service, a post office and no stoplight.

When the Nestors disconnected the well’s pump to see if that was the problem, they heard a loud sound: “Woooshhhh,” Melissa Nestor recalled, blowing air out of puckered lips.

“It was like, whoa,’’ Nestor said. “Gas was coming up out of the well. It’s a wonder we didn’t have a major catastrophe right there, like an explosion caused by a spark from a power tool.”?

Jim and Melissa Nestor at their farm in Taylor County, West Virginia. (Photo by James Bruggers)

From a coal mine about 350 feet below, methane had forced its way up through bedrock fissures and into the shaft of the well.?

At that moment last August, the Nestors’ lives — which revolved around caring for their livestock and pets and supporting their three sons’ activities in baseball, wrestling, football and 4-H — were changed forever.?

Now the Nestors are living in temporary quarters a mile away while their future hangs in the balance, depending on the outcome of a lawsuit the couple has filed in Taylor County Circuit Court against Arch Resources of St. Louis, the nation’s second largest coal mine operator.

The Nestors’ case is one of at least eight still pending that contend that Arch’s Leer Mine in Taylor County has damaged homes and property as a result of mining practices that can cause land to sink, alter ground and surface waters and, in the Nestors’ case, release dangerous methane.?

The lawsuits argue, among other allegations, that Arch’s mining activities violated state law that directs mining companies to “protect off-site areas from damage,” “eliminate fire hazards” and “minimize the disturbance of the prevailing hydrologic balance at the mine site and in associated off-site areas,” both during and after mining operations.

Those lawsuits follow more than two dozen others filed in Taylor County in recent years in which legal settlements were reached, according to Hunter Mullens, the attorney in Philippi, West Virginia, who is handling all of the cases for plaintiffs suing Arch.?

Mullens said he anticipated more lawsuits as mining continues to affect many of the several hundred people who live above the Leer Mine and as Arch expands operations in Leer South, a coal mine based in neighboring Barbour County that began operations in 2021.

For families that live on top of coal mines, the potential for methane, a colorless, odorless, flammable and explosive gas, to work its way to the surface is an ever-present fear. Known as an explosive threat to miners deep underground, methane vapors have also caused fires or blasts in or near homes when it has leaked to the surface.

Pleas last summer from the Nestors to the West Virginia Department of Environmental Protection and the U.S. Office of Surface Mining Reclamation and Enforcement to hold Arch responsible were rebuffed. Both agencies said that testing on a single day last September inside their home detected no methane, and as a result, they declared that there was no “imminent” threat.

A bulldozer operator moves coal at a train loading facility for the Arch Resources Lear South mine in Barbour County, West Virginia. (Photo by James Bruggers)

Methane is also a potent factor in climate change, around 80 times more potent than carbon dioxide at warming the planet over a 20-year period.?

While the U.S. coal mining industry has been on the decline for years as electric utilities embrace cheaper natural gas and cleaner energy sources, the type of coal mined by Arch at its Leer mines in West Virginia remains a prized commodity. It is of such a quality that it is used for making steel and is sold at a premium price.?

Economists see a continued market for this coal, called metallurgical or met coal, for decades to come — raising the possibility of ever greater methane emissions.

“One comes away with a clear sense that everything we know about how harmful our dependence on coal is, to our climate and our health, is made more so by this recognition that there are also methane emissions associated with it,” said Rachel Cleetus, the policy director for the Union of Concerned Scientists’ climate and energy program. “At the same time, we are not holding accountable the companies that have caused this pollution.”

Arch declined to comment on the lawsuits and the methane emissions. But in its most recent annual report, filed with the Securities and Exchange Commission, the company touted its commitment to safety and local communities.

“We believe that our long-term success depends upon achieving excellence in mine safety and environmental stewardship; conducting business in a most ethical and transparent manner; investing in our people and the communities in which we operate; and demonstrating strong corporate governance,” Arch wrote.

The Nestors left their home after they were warned to get out by Jack Spadaro, a former top federal mine safety engineer who works as a consultant for coalfield residents, workers and their lawyers.

The water well sits nine feet from the back of their house. After the couple reported their experience, Arch installed a pipe in the well that extends 20 feet into the air in an attempt to help the methane escape at a level high enough off the ground that it would pose less of a threat. But the pipe, which continues to release methane, is too close for comfort for the Nestors, who worry about its proximity to their back porch and their kitchen and bedroom windows.

Contrasting methane readings

The state DEP inspected the site on Sept. 9, and its report mentioned methane concentrations as high as 89 percent in the vent. Testing on Aug. 19, 2022, inside the home by Moody and Associates, a Pennsylvania-based consulting firm hired by Arch attorneys, had also detected methane, but at far lower levels, 120 parts per million, or less than 1 percent, according to the consultants. That’s “well short of the 5,000 ppm concentration that would prompt an evacuation of the residence,” Moody concluded.

Citing that report, Arch’s attorneys stated in response to the Nestors’ lawsuit that while methane had been detected inside the house, the levels were not high enough to require any “immediate” action. “Defendants deny that their mining operations have damaged or contaminated [the Nestors’] property,” the company said.

Spadaro counters that Moody’s conclusion “is not an accurate statement.” In mines, he said, concentrations above 1 percent signal a potentially dangerous condition, and a level of 2 percent requires mines to be shut down until adequate ventilation can be restored.?

He cited a technical guide issued by the federal Department of the Interior’s Office of Surface Mining and Reclamation. It identifies methane levels in homes above mines that exceed 1 percent as a concentration that may “necessitate remedial actions due to potential accumulation of explosive levels of methane.”

Jack Spadero, a former top federal mine safety engineer, works as a consultant for coalfield residents, workers and their lawyers. (Photo by James Bruggers)

For now, the Nestors are relying on advice from Spadaro, who has been investigating mine disasters for more than 50 years, and Mullens, whose small-town legal practice has embraced the goal of holding coal mining companies accountable for the full range of impacts to people who live above mines.

Melissa Nestor, who works as a school bus driver, said the family moved out because “I was scared to death for my kids, and for us.’’

“There’s methane coming in somewhere,” she said. “When can you sleep in a house not knowing when a bigger burst of methane is going to come into that location? I just can’t sleep knowing that anytime it could bring up enough? to blow us up, or bring up enough to take the oxygen out of the air and we just never wake up.”

Memories of past methane disasters

Spadaro says that the Nestors have reason to be concerned. “Some of the worst disasters that have killed hundreds of miners were explosions that were initiated by methane,” he said.?

The safety consultant was referring to the 2006 disaster at the Sago Mine, around 60 miles south of Thornton, in which 13 miners were trapped for nearly two days after an explosion and cave-in. Only one survived. “That was an example of a methane explosion in an abandoned part of a mine, where there was a methane cloud,” Spadaro said.

He also cited a 2017 federal court settlement between a West Virginia couple and Pinnacle Coal after an explosion in a house in Wyoming County that the plaintiffs attributed to methane from an underground mine. When an occupant started up a washing machine, “methane gas exploded, causing “serious damages to the interior and exterior of the home,” according to court records.

At its Leer mines, Arch uses a controversial mechanized technique, longwall mining, designed to maximize the amount of coal it can extract. Rather than harvest “rooms” of coal, leaving “pillars” of coal behind as support, longwall mining involves using a large bladed machine to shear off a slice of coal as wide as 1,200 to 1,500 feet that extends up to a mile in length, allowing the rock ceiling or “overburden” to collapse behind it.

Spadaro said that methane can coalesce in those mined areas of collapsed rock and waste rock and move unpredictably until it finds a way to escape, a situation that he suspects occurred in the Leer mine. That would put the Nestor family in a precarious position, he said.

“If you had a house and you had children in it, and you were nine feet from a pipe that was venting methane at what could be explosive levels, I don’t think anybody would want to live near that,” Spadaro said.

Mullens, the attorney for the Nestors, said? the case comes down to a question of risk and responsibility. “Does the coal company take the risk, as they’re making money off mining this coal?” he asked. “Or do people like the Nestors, who have three children and are trying to raise a family, take the risk? Well, right now, they’re taking the risk.”?

And Arch, he maintains, bears the responsibility.

Jack Spadero, a former top federal mine safety engineer, works as a consultant for coalfield residents, workers and their lawyers. (Photo by James Bruggers)

‘Met coal,’ a bright spot for a fading industry

As coal production in the United States dropped by almost 50 percent over the last decade, with utilities switching to natural gas and to renewable energy alternatives like wind and solar energy, met coal has been a bright spot for mining. With its value to the global steel industry, it can sell for double or triple the price of the coal used by power plants.

At many steel mills, especially those overseas, met coal is converted into coke, a high-carbon ingredient, in a 1,000-degree-plus manufacturing process. The coke is mixed with iron ore and limestone to make molten iron, which is then further treated to make steel.?

A train in Barbour County, West Virginia, carrying newly loaded up coal from Arch Resources Lear South mine. (Photo by James Bruggers)

West Virginia is among the major producers of met coal in the United States, supplying 63 percent of what is distributed to the nation’s coke plants, according to a recent report from West Virginia University’s Bureau of Business and Economic Research.?

Met coal mining generated $4.2 billion in revenue for mining companies operating in West Virginia and nearly $10 billion in total economic activity in the United States in 2019, the most recent year for which numbers are available. Such operations employed around 6,900 West Virginia miners.

Most of the coal gets exported to major steelmaking countries like China, India or Brazil.

Together, the Leer Mine and the Leer South Mine “anchor” Arch’s metallurgical business, according to the company’s annual report, and produced about 6 million tons of coal last year. That amounted to around 78 percent of the company’s met coal output and 8 percent of its total coal production in 2022.

Together, the two mines have 109 million tons of reserves in a coal seam that underlies at least 143 square miles of northern West Virginia.

While a boon to the state’s economy, longwall mining for met coal wreaks dramatic changes on the surface. The ground sinks. Local hydrology can forever change, altering the flow and availability of groundwater or surface waters. Methane can accumulate.

“When they mine the coal, the land drops three to four feet,” said Dennis Fisher, an engineer with experience in oil, gas and coal-mine permitting who is helping Mullens with the Nestors’ and other lawsuits. “It’s hard to believe, but that’s what happens. Houses, trees, roads, ponds: Everything subsides from where it was before.’’

Fisher has been investigating reports of methane emissions from coal mines in the region and has found the impacts and the resulting concerns to be clustered in certain areas. In Taylor County, “three or four years ago, people started having a lot of issues with subsidence damage to their homes,” he said. “And then after that, there has been a methane issue, where methane has been venting from these old water wells.”

‘Dodged a lot of scrutiny’

Methane builds up in coal seams as organic matter turns into coal, a process that can take millions of years. While it became a threat to the Nestors, it is also part of a global climate crisis.?

Globally, coal mining emits 52.3 million metric tons of methane per year, exceeding emissions from the oil (39 million metric tons) and gas (45 million metric tons) sectors, according to a 2022 report by Global Energy Monitor, a California-based nonprofit that tracks the energy industry.?

The estimated global emissions of methane from coal is roughly equivalent to the climate impact of the carbon dioxide emissions of all coal plants in China, the group said. Yet methane emissions from coal mines have “dodged a lot of scrutiny,” said the report’s author, Ryan Driskell Tate.?

Cleetus, the climate and energy specialist at the Union of Concerned Scientists, maintains that methane emissions from all sources are generally underreported, including those from coal mines.?

Federal and state rules limit methane concentrations inside mines to protect miners, but there are no government regulations limiting the amount of methane that gets blown out of coal mines into the atmosphere to protect miners, or what leaks into the air on its own.?

A spokeswoman for the federal EPA said she was unaware of any effort by the agency to move toward adopting limits on methane emissions from coal mines.

Cleetus said the federal government has instead focused on reducing the methane coming from abandoned coal mines. President Joe Biden’s Infrastructure Investment and Jobs Act of 2021 provides around $11 billion in spending over 15 years to address a range of problems caused by abandoned coal mines, including leaking methane.

But that won’t be nearly enough, said Cleetus, who argues that the federal government needs to do more. “This is an important moment for the EPA to think how to track methane and hold these companies responsible,” she said. “The climate is suffering, as are local communities.”

State regulators dispute damage claims

The problems in Taylor County can be traced back decades, to when coal companies bought mineral rights from under landowners, often for not much money. Generations later, today’s landowners are stuck with the consequences.?

Conflicts between mining companies and landowners were more intense before Congress amended the 1977 Surface Mining Control and Reclamation Act in 1992 to offer some protections, such as requiring coal companies to repair damage to homes or certain other structures or to compensate the homeowners, said Joe Pizarchik, a Pennsylvania attorney who ran OSMRE, the federal Office of Surface Mining and Reclamation, from 2009 through 2017, during the Obama administration. Yet the battles persist.

If a property owner’s water supply has been affected, the law requires coal companies to provide a replacement source. Companies are also supposed to let owners know they are going to mine underneath their property and conduct pre- and post-mining surveys to document any damage.

The Nestors’ lawsuit and others say that Arch has not lived up to the requirements of the law. Some homeowners claim, for example, that the company failed to conduct the surveys for subsidence damage.

Melissa and Jim Nestor at their farm in Taylor County, West Virginia. The tall white pole vents methane from a coal mine below. The Nestors have sued Arch Resources claiming property damage and unsafe conditions inside and near their home due to leaking methane. They have not lived in their home since last summer. (Photo by James Bruggers)

Officials at OSMRE, which also oversees impacts from surface or strip mining, declined to answer questions about how it regulates the impact of underground mining on anyone who lives above it, including the West Virginia litigants, referring questions to the state DEP. A spokesman for the DEP said he would not comment because of the litigation, even though the state is not a defendant in the eight active lawsuits filed by Mullens.

Public records show that the DEP took no enforcement action against Arch after its inspections of the Nestors’ property last year. State officials stated that no longwall mining had taken place directly under the home.?

After its Sept. 14 test on the family’s home found no methane, OSMRE ruled out a problem, writing that “no imminent harm conditions exist for methane at this time,” according to an Oct. 12 letter from the federal agency to Jim Nestor.

But Spadaro said that methane testing on a single day is meaningless and that Arch’s mining activity was close enough to presume that it caused the damage, with the home situated within 30 degrees of the edge of the mined area underground.

“They have willfully failed to protect the public,” he said.

The local lawyer, a Gulf War veteran

The law office that Mullens shares with his wife, Kate Mullens, in Philippi occupies a former appliance store on Main Street, in a downtown where history stands out. A distinctive covered bridge spans the Tygart Valley River, a successor to the one built there in 1852. Every year, the city holds a re-enactment of the first Civil War land battle in West Virginia, won by Union troops.

A map of U.S. railroads in the Civil War era stands in a large frame on the floor in the law office’s lobby, and a photograph of Abraham Lincoln hangs in the conference room.

Mullens served in U.S. Army combat operations during the Persian Gulf War, which drove Iraqi forces from Kuwait in 1990 and 1991.

He is not the typical lawyer to take on the coal industry in a part of a coal state where the industry sees its future. Coal mining runs in his family; his father, Paul Mullens, worked as a dozer operator and later as a superintendent of a surface mine. And Hunter Mullens is president of the business-friendly Barbour County Chamber of Commerce.

Hunter Mullens, a lawyer in Philippi, West Virginia, talks about property damage he believes was caused by underground coal mining at the home of one of his clients in Taylor County. (Photo by James Bruggers)

Still, some of the pain he has experienced in his lifetime might be attributed to the coal industry. He said his father died at 55 of complications from lung and breathing issues, with coal dust and black lung disease suspected as a factor.

Arch has accepted its obligations to Taylor County landowners in the past and needs to do so again, Mullens said. In February, the company posted a record net income of $1.3 billion for 2022.

“We are not opposed to coal mining, but the people should be treated fairly,” Mullens said. “And they should be safe.”

‘We thought someone shot the window’

For visitors rumbling along the back roads of Taylor County, the telltale signs of subsidence and leaky methane are newly constructed homes with white methane vent pipes in the front, side or back yards. Mullens points to road cracks and slumps in the pavement resulting from mining operations that were later repaired.

In one lawsuit, his clients Tim and Vanessa Carr are pressing Arch to pay for damages to their two-story farmhouse, which was built by Tim’s great-grandfather in the early 1900s. They moved out after plaster fell from the ceiling of their daughter’s bedroom three years ago, frightening her. The home’s foundation and walls also cracked, the couple stated in their lawsuit.

Tim Carr, a Taylor County, West Virginia resident, has with his wife, Vanessa, sued Arch Resources over claims of damage to a home that has been in his family for generations. (Photo by James Bruggers)

“We woke up one morning and we heard a pop, and we thought somebody shot the window,” Tim Carr said in an interview. “The window exploded. Later in the day, another window exploded.”

Tammy and Chuck Foley, also clients of Mullens, raise cattle on a hillside farm that has been in Tammy’s family for decades. They contend that coal mining underneath their property cracked buildings, dried up springs and water wells and released methane gas.

At least for now, Arch is paying for public water to keep the livestock alive. But Chuck Foley, a former Barbour County administrator, is uncertain how long that arrangement will last and is looking for a settlement that accounts for damage to his house and several other buildings on the property.

The Foleys say that one of the first clues that they had a problem was when water shot 10 feet out of a well near one of three homes on their property. The coal company installed a methane vent.

Chuck Foley of Taylor County, West Virginia, and his wife, Tammy, sued Arch Resources over claims of property damage, loss of well waters and leaking methane, after coal mining occurred under their farm. (Photo by James Bruggers)

Tammy Foley’s parents were living in that house at the time, and she recalls her mother telling her what it was like for them when the house was “creaking, and cracking and heaving” in 2020, just before she died.

“They were both 70 or 80 years old, sitting there with this house fallen down,” she said. “Then her doors wouldn’t open to the basement, and we noticed the front steps were all cockeyed.”

Her father is now living in a nursing home. Chuck Foley said it saddened him to recall what his wife’s parents had to confront “right at the end of life.’’

“We just want to get it settled and move on with our lives,” he said of the the lawsuit against Arch.

In court papers, Arch has denied liability for the damages the Carrs and Foleys described.

Selling off cattle to make ends meet

Jim Nestor has lived on his farm since 1991. It covers about 67 acres that he inherited from his previous wife, who died of cancer in 2005.

After moving out last summer, Jim and Melissa Nestor found a temporary place to live that was 21 miles away. For months, they made the 42-mile round trip twice a day to feed their animals, a costly and time-consuming trek along winding country roads.

Jim Nestor at his cattle farm in Taylor County, West Virginia. He and his family have not been able to live on their farm since last summer due to methane leaking into their home. (Photo by James Bruggers)

Now renting a house about a mile away, they have found that the extra expenses continue to mount even if they are closer to their animals. They’ve had to sell a quarter of their herd, which formerly numbered around 40 cattle, to make ends meet.?

Even though they currently have access to public water, that’s an unaffordable long-term solution for animals that each drink 30 gallons per day, the Nestors said.

“I don’t want to be rich or anything,” Jim Nestor said. “I just want my house and my farm. I don’t think that’s too much.”

EPA narrows loophole by expanding regulation of coal ash dumped at power plants

James Bruggers, Inside Climate News — Wed, 24 May 2023 09:50:56 +0000

Power plants that burn fossil fuels would have to significantly curb heat-trapping carbon emissions under new EPA rules being challenged in federal court by Kentucky's Russell Coleman and other Republican attorneys general. (Getty Images)

The Biden administration is taking steps to address a regulatory loophole that public interest groups said allowed at least a half-billion tons of toxic coal ash to go unregulated.

The Environmental Protection Agency published a new draft rule last week that the groups said would extend federal oversight to much of the coal ash disposed at both operating and retired power plants.?

The proposed rule would extend federal monitoring, closure and cleanup requirements to hundreds of previously excluded older landfills, legacy ponds and fill sites. Coal ash is the waste that remains after coal is burned for electricity, and is among the most costly of the long-term legacies from more than a century of burning coal.?

The action comes as part of a settlement between the federal agency and public interest groups, including the Sierra Club. The groups said the proposed rule would force owners to address problems at facilities like the Bull Run Fossil Plant near Oak Ridge, Tennessee, Four Corners Power Plant near Fruitland, New Mexico, and Stanton Energy Center in Orlando, Florida. Many of the sites are in low-income communities and communities of color. The action also comes after Inside Climate News, WMFE in Orlando and NPR brought national attention to the federal loophole in late 2021 and early 2022.

“This is a really big deal,” said Lisa Evans, senior counsel at Earthjustice, a nonprofit organization litigating environmental issues, which represented the public interest groups. “For far too long a large portion of toxic coal ash around the U.S. was left leaching into drinking water supplies without any requirement it be cleaned up. The EPA is taking significant steps to address a massive loophole that let many coal plant owners off the hook.”

Indiana, Ohio, Illinois and Pennsylvania rank as the states with the most power plants with at least one regulated or unregulated coal ash dump, with 24, 23, 23 and 21 dumps each, followed by Kentucky, with 20, according to Earthjustice mapping.

The Obama administration’s EPA in 2015 adopted the first national regulations on coal ash. The regulations applied to existing and new sites but exempted coal ash at power plants that had already stopped generating electricity and landfills that had already closed. Those rules required monitoring and cleanup, but only at dump sites that were covered by the new regulations. Earthjustice has since identified 566 landfills and ponds at 242 coal plants in 40 states that were excluded from the regulations, based on an analysis of industry data provided to the EPA.

For instance, at the Stanton Energy Center in Orlando, dumping at a 90-acre coal ash landfill stopped just 52 days before the regulations took effect. The maneuver exempted the landfill from the new requirements for environmental monitoring and, if contamination were found, a requirement to take corrective actions. Those standards only applied to new dumping areas next to the closed landfill at Stanton, which is operated by the Orlando Utilities Commission

“OUC has always managed coal ash responsibly and transparently, in accordance with regulations set by the U.S. Environmental Protection Agency’s (EPA) Coal Combustion Residuals Rule and the Florida Department of Environmental Protection’s Power Plant Siting Act,” said Michelle Lynch, a spokeswoman. “OUC is and will remain committed to our environmental responsibility by working to meet or exceed all local, state and federal regulatory requirements now and in the future. We have always made it a point to do the right thing — and we will continue to do so for our community and environment.”?

Under the new draft rule, the EPA would compel owners, with some exceptions, to monitor and clean up all coal ash at their facilities, rather than trying to regulate each dump individually. The proposed site-wide approach would lead to more effective safeguards, Earthjustice said.

“It’s a step forward, for sure. It’s a more holistic approach to regulate coal ash, and it does close a very important loophole,” said Abel Russ, senior attorney at the Environmental Integrity Project, a nonprofit advocating for more enforcement of environmental laws, and a plaintiff in the lawsuit that prompted the new EPA action on coal ash. “There are ways we still think it could be stronger. But in particular, I really appreciate that the EPA is going to be requiring the owners and operators to provide information about their sites in a way that the public will be able to access.”??

Russ said the proposed rule would continue to be self-implementing and would be difficult to enforce. The public interest groups also said the draft rule fails to extend regulations to all coal ash dump sites at former plants. For instance, ponds that did not have water in them in 2015 or later would be excluded, and landfills at former plants that do not have a legacy pond also would be excluded. Earthjustice said up to 58 landfills could be excluded under this exemption. The proposed rule also does not address coal ash that was used as construction fill at playgrounds, schools and throughout neighborhoods, Earthjustice said.

“As the EPA works to finalize these reforms by next year there are a few things they need to do,” said Evans of Earthjustice, which sued the EPA in 2022. Among other plaintiffs were the Indiana? branch of the National Association for the Advancement of Colored People and Hoosier Environmental Council.

Kentucky has fourth-most chemical plants subject to proposed new curbs on toxic emissions

James Bruggers, Inside Climate News — Wed, 19 Apr 2023 09:50:36 +0000

Cattle graze in a pasture next to the Denka Performance Elastomer facility in LaPlace, Louisiana, where U.S. Environmental Protection Agency leader Michael Regan announced proposed regulations Thursday, April 6 for toxic air emissions. The federal government has sued Denka for failing to reduce levels of chloroprene, a known carcinogen, coming from the plant. (Photo for Louisiana Illuminator by Greg LaRose)

The administrator of the Environmental Protection Agency recently used the smokestacks of Louisiana’s “Cancer Alley” as the backdrop to announce new rules aimed at reducing harmful, toxic emissions from chemical and plastics plants across the country.

“For generations, our most vulnerable communities have unjustly borne the burden of breathing unsafe, polluted air,” Michael S. Regan, the nation’s top environmental regulator, said from behind a podium bearing the EPA seal, with grazing cows and one of the region’s ubiquitous chemical plants in the distance behind him.

Manufacturing facilities potentially subject to the new emissions controls, from New York to Oregon, are concentrated along the Gulf Coast in Louisiana and Texas, with clusters in Kentucky, Ohio and West Virginia. They often emit chemical byproducts that have been linked to cancer and other health risks and disproportionately impact communities of color and low-income white neighborhoods.

Kentucky has the fourth-largest number of facilities that potentially fall under the proposed regulations, at 10, according to data from EPA and the environmental group Fracktracker. That includes four plants in Louisville’s Rubbertown area: Zeon Chemicals, Chemours, American Synthetic Rubber and Hexion. Other potential plants covered by the regulations include Westlake Vinyls in Marshall County, Dow Chemical in Carroll County and? Marathon in Boyd County.

Neither the Louisville Metro Air Pollution Control District nor the Kentucky Energy and Environment Cabinet had an immediate?substantive response to the EPA proposal. Energy cabinet spokesman John Mura said state officials were reviewing the proposal and declined further comment.

“It’s kind of big. We’re looking at it and trying to figure out what it means,” Matt Mudd, spokesman for the Louisville agency, said on April 7 of the EPA proposal.

These plants are already subject to what the EPA considers to be “maximum achievable control standards” to limit pollution. But the proposed rules announced earlier this month will require additional pollution control measures to counter continuing health risks those communities still face despite existing pollution controls. The new rules also reflect more current research findings on health risks from some chemicals, like the carcinogen ethylene oxide.

It has been nearly two decades since the rules were last updated, so action was long overdue, environmental advocates said.

Environmental Protection Agency Administrator Michael Regan, left, embraces Robert Taylor, head of Concerned Citizens of St. John the Baptist Parish. Regan was in LaPlace, Louisiana April 6 to announce proposed regulations for chemical plants. (Louisiana Illuminator photo by Greg LaRose)

This announcement is “undoubtedly a game changer, especially for children,” Regan said, noting that youth are most vulnerable to toxic pollution. “There is no higher priority for me than protecting the children of this country.”

He made the announcement in St. John the Baptist Parish, where Denka Performance Elastomers has become a lightning rod for controversy related to emissions of the toxic chemical chloroprene near an elementary school. The former Louisville plant, Dupont Performance Elastomers, shut down and consolidated its operations in 2008, at what later became Denka, eliminating chloroprene emissions in Louisville.

The American Chemistry Council, the leading lobby group for the chemical industry, issued a statement saying that its member companies “are committed to being good neighbors and helping safeguard communities and the environment.”

Since the 1980s, the group said, “total toxic releases” and other air emissions “in the U.S. have fallen sharply,” even as population and gross economic output have grown.

Still, the council said, “we are concerned that EPA may be rushing its work on significant rulemaking packages that reach across multiple source categories and could set important precedents. We will be engaging closely throughout the comment and review process.”

Litigation by Earthjustice compelled EPA to meet a March 31 deadline to decide whether to update the rules governing what Congress defines as “hazardous air pollutants.” The nonprofit environmental law group had represented several environmental groups including the Sierra Club, Louisiana Environmental Action Network, Concerned Citizens of St. John and California Communities Against Toxics.

Taken together, the proposed rules mark a critical step “in protecting communities from our nation’s largest and most hazardous chemical plants,” said Adam Kron, an Earthjustice attorney.

Regan recalled his visit to what many call Cancer Alley in 2021, which EPA dubbed “Journey to Justice.”

“I distinctly remember standing on the grounds of a school that was a stone’s throw away from a facility that manufactures toxic chemicals.The children who attend that school, who study at that school, who eat lunch at that school every single day, look just like my son Matthew,” said Regan, who is Black. “I met with families all across this community. And nearly every person that I spoke with knew someone who suffered from an illness that they believed was connected to the pollution in the air they breathe.”

Robert Taylor, president of Concerned Citizens of St. John Parish, an environmental justice group, thanked Regan for coming in 2021, and then following through with action. “The man actually walked the streets, knocked on doors and he got to meet people,” he said. “And he is living up to that commitment by what we are seeing today.”

Beverly Wright, executive director of the Deep South Center for Environmental Justice in New Orleans, hailed the announcement as “a truly historic day” in the 30 years she has been working in the area known as Cancer Alley, a 130-mile stretch along the Mississippi River that is dotted with more than 200 industrial facilities, including oil refineries, plastics plants, chemical plants and other factories that emit significant amounts of harmful air pollution.

Data collected by the Environmental Defense Fund shows that 83 percent of these facilities have been out of compliance under the Clean Air Act, Clean Water Act or the nation’s law requiring proper management of hazardous and non-hazardous solid waste.

Regan said the rule would cut the emissions of dozens of toxic air toxic pollutants and focuses new attention on several highly toxic chemicals, most known to cause cancer in humans:

ethylene oxide, a flammable gas used in manufacturing other chemicals that go into making a range of products, including antifreeze, textiles, plastics, detergents and adhesives.
chloroprene, a liquid used in the production of neoprene at the Denka plant in La Place, Louisiana. Neoprene is found in wetsuits, gaskets, hoses and adhesives. EPA considers it likely to cause cancer in people.
1,3 butadiene, a highly flammable gas primarily used to make plastic and rubber products.
benzene, a highly flammable liquid used to make other chemicals that go into plastics, resins, nylon, adhesives, sealants and synthetic fibers. It’s also used to make some types of rubbers, lubricants, dyes, detergents, drugs and pesticides.
ethylene dichloride, a highly flammable liquid used to make plastic, polyvinyl chloride, resin, other chemicals and in the manufacturing of petroleum and coal products.
vinyl chloride, a colorless gas usually handled as a liquid under pressure, used to make polyvinyl chloride (PVC) plastic and vinyl products.

Some of these chemicals, like ethylene oxide and chloroprene, are emitted from a relatively small number of facilities. Others are more widely used.

The EPA inspector general’s office last year found that the EPA needed to act on chloroprene and ethylene oxide, saying EPA’s modeling and monitoring indicated that as many as a half-million people in some areas of the country may be exposed to unacceptable health risks from them.

A member of Concerned Citizens of St. John the Baptist Parish wears a T-shirt that says “Only 0.2 will do – clean air, clean water, clean soil. The shirt references the acceptable levels of carcinogen as determined by the U.S. Environmental Protection Agency’s Integrated Risk Information System, or IRIS. (Louisiana Illuminator photo by Greg LaRose/)

In making its announcement, EPA said its proposal would update several regulations that apply to chemical plants. The proposed rules would reduce 6,053 tons of air toxics emissions each year, which are known or suspected to cause cancer and other serious health effects.

Facilities that make, store, use or emit ethylene oxide, chloroprene, benzene, 1,3-butadiene, ethylene dichloride or vinyl chloride would be required under the new rules to monitor levels of these air pollutants entering the air at the fenceline of the facility—something that environmental justice advocates across the country have been advocating for years. EPA would also make the monitoring data public.

Fenceline monitoring amounts to more than tracking emission levels at a chemical plant’s property line, said Jane Williams, executive director of California Communities Against Toxics, one of the plaintiffs in the lawsuit that prompted the EPA to act.

“They have to manage their plant to the metric,” she said. “It’s not just monitoring.”

She described fenceline monitoring as “the police body cams of the chemical industry.”

The rules also seek to address another frequent complaint from people who live near chemical plants — that the EPA has been too lax regarding emissions released during start-ups, shutdowns, emergencies or malfunctions.

Federal courts have told the EPA since 2008 that chemical plants cannot use events like malfunctions or shutdowns as broad exemptions to clean-air regulations, said Kron, the Earthjustice attorney.

Along the Gulf Coast, environmental advocates have complained about emissions related to disturbances from major storms, such as hurricanes, and malfunctions that cause plants to relieve pressure by burning off or “flaring” chemicals in pipes or tanks, often sending flames or smoke billowing into the air.

These can cause “huge toxic releases and the way the rules are written, that is completely permissible,” Kron said. “That needs to change.”

Regan seemed to agree.

“Communities don’t stop breathing during a hurricane,” he said. “They don’t stop breathing during an event. It is the company’s responsibility to control their pollution.”

Environmentalists expect robust industry pushback during the rule-making process, which will include a 60-day comment period and at least one virtual public hearing.

“I expect the industry to buck and scream and go to Congress,” said Williams, the California activist. “We look forward to working with the administration to ensure the final rules remain as strong as the rules proposed today.”

EPA administrator Michael Regan spoke at a news conference in St. John the Baptist Parish, Louisiana. (EPA via YouTube)

Why Kentucky is dead last for wind and solar production

James Bruggers, Inside Climate News — Mon, 03 Apr 2023 09:50:10 +0000

“I wish I could tell you why we keep getting hit here in Kentucky. I wish I could tell you why areas where people may not have much continue to get hit and lose everything," said Kentucky Gov. Andy Beshear after deadly flooding hit Kentucky's mountains last July. Beshear surveyed the damage with the Kentucky National Guard. (Photo Kentucky Office of the Governor)

LOUISVILLE, Ky.—Andy McDonald recalls a decade-old Kentucky legislative hearing on an energy diversification bill with the same sense of frustration that he felt back then, when he testified before a panel of lawmakers who were mostly coal industry loyalists.

McDonald, a clean energy advocate and energy policy consultant, was armed with a study by Synapse Energy Economics of Boston that made an economic case for requiring utilities to invest in renewable energy and energy efficiency.

Lawmakers opted to maintain the status quo.

“After testifying about this, the legislature went on a rant about how high energy bills were and why we can’t do anything about that,” said McDonald, founder and director of Apogee, a firm in Frankfort that provides technical assistance, education and policy research toward advancing a renewable energy transition. “I was banging my head on the table, saying we just told you what you can do about that.”

A decade later, the latest figures from the U.S. Energy Information Administration show that Kentucky is dead last among states for wind and solar production in the United States. And while state officials note an uptick in the last couple of years in proposed utility-scale solar power projects, Kentucky experienced what could be described as a lost decade of renewable energy investment, while wind and solar power have soared in other states — including some other coal states.

“The absence of a renewable portfolio standard has been a major factor in our backwardness,” said McDonald. “The coal industry has had such a grip on the legislature and the governorship, and the culture, it’s really held back policies that would have supported renewables.

“It’s not the lack of sunshine,” McDonald said.

Coal states’ response to energy transition varies

Ten years ago, it was clear that the coal economy was in freefall and that wind and solar were on the rise.

Kentucky ranked third in the country in coal production in 2013, behind Wyoming and West Virginia, and the state was tied with several others at the bottom in wind and solar development.

In 2022, Kentucky’s coal production had fallen by 65 percent and its ranking fell to fifth. And, the state had made almost no investment in wind and solar, so it remained at the bottom.

But it was a different story in some of the other leading coal states. Illinois, Indiana, North Dakota, Ohio and Texas all had increases in electricity generation from wind and solar of at least 100 percent.

Kentucky was much more like its neighbors Pennsylvania and West Virginia, with a relative lack of wind and utility-scale solar development.

So what is it about Kentucky that has held the renewable energy sector back? A common explanation is that the state doesn’t have strong winds or bright enough sun.

But that’s not true. Kentucky has more than enough of both to support substantial development, according to a model developed at the Goldman School of Public Policy at the University of California, Berkeley.

“Western Kentucky has very good solar (potential) and also very good wind,” said Umed Paliwal, a senior scientist at the university.

It’s useful to compare Kentucky and Indiana, he said. Indiana’s wind speeds have allowed for significant wind farm development and give it the capability to build about one-third more wind power capacity than Kentucky, and Indiana’s sunshine would allow it to build about double the solar power capacity of Kentucky. This is based on the model’s estimates of the technical potential of what could be built in each state and sell for competitive prices on the market.

Indiana has an edge, but it’s not nearly large enough to explain the huge difference in the amount of wind and solar development that has taken place. This comparison provides a sense of the scale of Kentucky’s untapped potential.

“The states that have done well with renewables are states that planned for it, and had public leadership that welcomed it,” said Adam Edelen, a former Kentucky state auditor who runs a Kentucky-based company, Edelen Renewables, working to bring solar projects and jobs to ailing coal communities in Appalachia. “In Kentucky, for too long, both political parties have alternated between ambiguous and hostile to renewable energy.”

The problem persists. One example, he said, is the recent decision by Kentucky Gov. Andy Beshear, a Democrat, not to veto a bill passed by the Republican-controlled General Assembly intended to prevent the closing of half-century-old and uneconomical coal-fired power plants.

Rep. Richard White, R-Morehead.

On March 16, before the House voted to pass Senate Bill 4, Rep. Richard White, a Republican from Morehead, argued for coal as a matter of religious faith. “When God created this Earth, he provided us with natural resources … and coal is one of them,” White said, adding that God intended coal for people “to make a living, to survive in this world.”

The bill is part of a pattern in Kentucky of sticking with coal despite overwhelming evidence of the fuel’s environmental hazards and high financial costs. It is an allegiance so strong that even the state’s utilities are imploring lawmakers to take a different course.

Kent Blake, chief financial officer of LG&E and KU Energy, the state’s largest utility, had urged lawmakers to hold off and craft a more narrowly focused bill. The two coal plants his utility wants to shutter are 50 to 60 years old and would cost hundreds of millions of dollars to get up to date, he said.

The bill, now a law, will have “unintended consequences,” he told lawmakers, leading to “higher rates and less reliable service. It does not necessarily support the coal industry in the state.”

Edelen said this backward-looking tendency is misguided.

“Energy policy in Kentucky is akin to Confederate Civil War re-enactment,” he said — or repeating the experience of the losing side.

The death spiral of Kentucky’s coal industry

Kentucky’s bottom-feeder place in the renewable energy ecosystem can be explained in a single word: coal.

What stands out is Kentucky’s ingrained and ongoing allegiance and cultural affinity to the bituminous rock, often depicted in popular music as a common man’s or family’s struggle. The 1940s song, “Sixteen Tons,” by Merle Travis, alluded to his native Muhlenberg County in the Western Kentucky coalfield: “You load 16 tons, what do you get? Another day older and deeper in debt. St. Peter, don’t you call me ’cause I can’t go. I owe my soul to the company store.”

And in the state’s other coalfield, in Eastern Kentucky, Loretta Lynn wrote “Coal Miner’s Daughter,” first released in 1970: “We were poor but we had love. That’s the one thing that daddy made sure of. He shoveled coal to make a poor man’s dollar.”

Coal is the dirtiest of fossil fuels and a leading contributor to climate change. In Kentucky, it has also been on the decline for decades and in a death spiral the last decade, largely because of an inability to compete with the low prices of other sources of electricity.

Kentucky coal production fell? 65 percent between 2013 and 2022, dropping from 80.4 million tons to 28.5 million tons.

During that same time, the state lost nearly 7,000 coal mining jobs, which declined by 58 percent, from 11,781 in the fourth quarter of 2013, to 4,837 during the same period in 2022, according to the Kentucky Energy and Environment Cabinet.

Renewable energy in Kentucky failed to keep up with other states in part because of coal’s inertia, said attorney Jim Gardner, who was on the Kentucky Public Service Commission from 2008 to 2016, serving as chairman and vice chairman. Gardner now has a law practice whose clients include solar developers.

“Kentucky has been behind the curve, no doubt about that,” Gardner said. But the state had an abundance of coal-power generation, which didn’t leave much room for new sources of electricity.

“What coal provided was cheap electric rates compared to the rest of the nation, which helped Kentucky in attracting manufacturing,” such as steel and aluminum mills and automotive plants, he said. “People didn’t want to jeopardize that.”

The loyalty to coal continued even as the fuel lost its cost advantages compared to natural gas, wind and solar power plants.

While Kentucky ranked last in the country in wind and solar power generation last year, it ranked 37th in all renewable sources of electricity, thanks to its hydroelectric dams, most of which were built decades ago.

Developers have tried to build wind farms in the state. At least two companies pulled back in 2014 when their projects ran into state and local opposition, including a state law that changed requirements for public meetings and increased the minimum distance between a wind turbine and a neighboring property line.

Wind power companies found that it was much easier to do projects in neighboring states like Illinois, Indiana and Ohio.

Another complicating factor is that Kentucky is split between several grid regions, said Joe Daniel of RMI, the clean energy research and advocacy group. Much of its eastern half is part of PJM Interconnection, the largest grid in the country, which runs from Chicago to New Jersey. Some of the area along the Ohio River in western Kentucky is in the MISO grid region, which covers much of the Midwest and South. And the rest of the state isn’t part of any grid region.

The upshot is that a renewable energy project in the state may have some additional challenges and expenses navigating the regulatory process to connect to the grid.

Uncle Sam may spur renewable energy growth

But the balance is changing, Gardner said, citing a plan announced in December by LG&E and KU Energy to shut down three more aging coal-fired units, build two more gas units and a utility-scale solar plant, while adding purchase agreements for additional solar power and battery storage. The plan is controversial, attacked by the coal industry and Republican lawmakers as anti-coal, and environmentalists for relying too much on fossil fuels and failing to move faster toward renewable energy amid a climate crisis.

At the same time, utility-scale solar developers have begun to show interest in Kentucky.

Since late 2019, the Kentucky State Board on Electric Generation and Transmission Siting has received 30 applications for solar plants. Of those 22 have been approved, said Linda C. Bridwell, the Kentucky Public Service Commission executive director, whose staff serves the siting board.

As those projects come online, the state will see a substantial increase in renewable energy. But this is in the context of utility-scale renewable energy growing even more in neighboring states.

And yet, state officials downplay the role of state policy.

“Kentucky lets the marketplace dictate the types of preferred fuel and has a? regulatory responsibility to ensure reliability,” John Mura, spokesman for the Kentucky Energy and Environment Cabinet, the main environmental regulatory agency in the state, said in a written response to questions.

Rep. Chris Fugate spoke in favor of HB 4.

But that’s not so anymore, with the passage of SB 4. Lawmakers propped up coal even after hearing from LG&E and KU Energy, the Tennessee Valley Authority and a gas pipeline company that coal and natural gas plants struggled to keep up during a rapid deep freeze in December resulting in unplanned power outages. They were helped out by the MISO grid region, whose wind resources were a stabilizing force.

Rep. Chris Fugate, a Republican from the tiny town of Chavies, in a heavily mined-over part of Perry County in the Eastern Kentucky coalfield, wasn’t buying that explanation, recalling in a recent committee hearing how, as a child, he kept his “pawpaw’s” home so hot by stoking coal in a basement stove that they had to keep the windows open.

“I don’t know that I’ll ever hush about talking about the reliability of coal,” Fugate said. “Because … you can always throw another scoop of coal in that coal-fired generation plant.”

Many lawmakers “just don’t think climate change is real,” said Andrew Melnykovych, the recently retired Public Service Commission spokesman.

For Beshear’s part, he does not often talk in public about climate change. He? has an energy policy that does not include the term and was criticized last year for wondering why his state had been hammered by repeated extreme weather —?flooding and tornadoes — that killed his constituents by the dozens.

Kentucky Gov. Andy Beshear embraces then-Rep. Angie Hatton as Whitesburg Mayor Tiffany Craft speaks to the media on July 31, 2022 in Whitesburg. At that time, 28 people have been identified as killed in flooding in southeastern Kentucky; the number rose to 44. (Photo by Michael Swensen/Getty Images)

Still, a recent Morning Consult poll ranks Beshear as the most popular Democratic governor in the country as he faces re-election this year — in a state that Republican Donald Trump, with his aggressive fossil fuel agenda, won by 26 percentage points. Last week Beshear made the political calculation to not sign, or veto, SB4, and allowed it to become law. A spokeswoman declined to comment.

Mura said federal incentives in the 2021 Infrastructure Investment and Jobs Act and last year’s? Inflation Reduction Act have the potential to change the state’s renewable generation landscape significantly.

Indeed, the state has an opportunity to change course, said Aaron Brickman of RMI, who works on the intersection of economic development and clean energy. Beshear has shown himself to be pragmatic in seeking some clean energy investments, including several battery plants being built for use in electric vehicles, Brickman said.

And, he said, the federal legislation means that investments in renewable energy are going to grow substantially, which gives every state a chance to make up for lost time.

“It doesn’t matter what you think about clean energy, or what you thought of it before,” he said. “What you’re focusing on now is the jobs and economic development.”

Still, Kentucky has lost out on years of economic investment by renewable energy developers, said McDonald, the clean energy advocate and consultant.

The Synapse report from a decade ago estimated that over 10 years, a renewable energy standard in Kentucky could create more than? 28,000 jobs, adding $1.5 billion to gross state product once fully implemented in 2022, while putting downward pressure on rising electric bills.

Nevertheless, McDonald is hopeful.

“In the world around Kentucky, there is so much momentum,” he said. “At a certain point,” the constituents of Kentucky lawmakers who have stood by coal “may see they have better options.”

Reclaimed coal mine site planned for solar development in Eastern Kentucky. (Photo by Edelen Renewables)