About 20 KFTC members from 10 counties met in Prestonsburg last week for a training about ways to use community organizing and community science to enforce the Clean Water Act and protect the health of their communities.

"Knowledge is power," noted one participant from Magoffin County. "Water testing is a good way to get other people involved. To be honest, lots of people don't pay much attention to so-called experts. But information they get from their neighbors holds more water."

At the end of the workshop each participant took home a wand they can use to take basic, important measurements of stream health. These particular meters measure three things: temperature, conductivity and Total Dissolved Solids (TDS). As one participant explained, measuring the conductivity and TDS levels of a stream is a bit like taking a person's temperature. The results provide a good indication if the person, or in this case the stream, is sick. Then additional tests are needed to learn more about the cause and exact nature of the problem.

The US Environmental Protection Agency considers a stream to be severely impaired and unable to support aquatic life if the conductivity is above 500 (measured in units called microsiemens). Healthy Appalachian stream generally have conductivity levels between 200 and 300. In comparison, Floyd County KFTC member Rick Handshoe recently recorded a conductivity reading above 4,000 in a polluted creek behind his home.

Throughout the day, participants also learned about key principles and practices of community organizing. They discussed tips for having good conversations, developing strategy, and communicating publicly about water quality concerns. Before heading home, members developed plans for which streams they would test and ways to educate and involve other people. The full group plans to come back together again in August to share experiences and continue learning.

The training was the first of many that KFTC plans to offer to our members as part of a larger Community Science and Public Health project. Many thanks to our ally organizations Appalachian Voices and Sierra Club, who contributed valuable technical information and equipment.

Community Organizing & Water Testing Training 

When: Saturday May 12th, from 10:00 AM - 4:00 PM

Where: The Floyd County Public Library in downtown Prestonsburg

If you Plan to attend: Please contact Kristi Kendall at 606-263-4982 or kristi@kftc.org or contact Kevin Pentz at 606-335-0764 or kevin@kftc.org, we want to be sure we have enough equipment for everyone. Also please bring a jar of water from a nearby stream.

Lunch: We will provide soup beans cornbread, drinks and snacks, but please feel free to bring another dish to share with everyone.

Rick Handshoe using a conductivity meter in a creek.

We will start off the morning with reviewing some principles of organizing and how this can be incorporated with water testing. In this first training we will be learning how to use basic conductivity meters and we will get an understanding of what is conductivity and why is it important. We will also be thinking through and developing skills to involve local communities in not only the testing but also in understanding the results.

I've been a water sampler on the Licking River and Big Sandy River Watershed Watch for many years. There is a lot of energy in the beginning, but that can diminish over time if volunteers do not see how their efforts lead to improved water quality. A community organizing element added to water testing is a great way to see that water testing results in cleaner water and healthier communities.

Doug Doerrfeld, Co-Chair of KFTC's Land Reform Committee

We will also be training members in methods for recording their test results in an on-line public database. This database will be able to show on a map where the streams were tested and what the tests showed.

We will also develop criteria to identifying what at the streams and communities where we want to consider doing more extensive testing.

In follow-up trainings we will discuss the results people have been finding and we will expand on people's testing skills and consider what further equipment or expertise we will need in our field testing.

Kentucky citizens got a victory today when the Kentucky Supreme Court ruled that KFTC, Kentucky Riverkeepers and others have the right to intervene in a Clean Water Act enforcement case.

"In a strongly worded ruling the Kentucky Supreme Court has for the first time affirmed the right of every Kentucky citizen to intervene in state court enforcement actions," said Doug Doerrfeld, a member of KFTC's Litigation  Team. "This is a victory for every citizen of our Commonwealth who values clean water."

The case dates back to October 2010 when Appalachian Voices, KFTC and other groups and individuals notified ICG (International Coal Group) and Frasure Creek Mining of our intent to sue over thousands of violations of the Clean Water Act at the companies' mines in eastern Kentucky.

Officials with the Kentucky Energy and Environment Cabinet attempted to prevent that lawsuit by negotiating a settlement with the companies, which they asked the Franklin Circuit Court to approve in December 2010. These deals represented a light slap on the hand, called for inadequate remedial actions and did nothing to discourage ongoing violations, so KFTC and our allies asked to intervene in the case.

After hearings and written arguments, during which cabinet officials called us an "unwarranted burden," Judge Shepherd allowed KFTC, Appalachian Voices, Kentucky Riverkeeper and the Waterkeeper Alliance to become parties in the case to represent the public interest in clean water.

After the Court of Appeals upheld Shepherd's ruling, the cabinet and Frasure Creek appealed to the Supreme Court, leading to today's unanimous decision.

"The Supreme Court has strongly rebuked an attempt by the Energy and Environment Cabinet to slam the door shut on Kentucky citizens who want to exercise their rights to intervention in state enforcement actions," said Doerrfeld. "The court went so far to assert that, '… an interested citizen’s not being permitted to so intervene can be a factor in casting doubt upon the ‘diligence’ of the state’s enforcement efforts.'”

Here's a copy of the ruling.

A new national survey shows overwhelming and bipartisan support for clean energy policies that go far beyond what is currently in place, especially in Kentucky.

More than 80 percent of the 1,019 people asked agreed with the statement: “The time is now for a new, grassroots-driven politics to realize a renewable energy future.” The favorable response included 69 percent of Republicans, 84 percent of Independents, and 95 percent of Democrats.

The survey further defined that policy as “one that protects public health, promotes energy independence and the economic well being of all Americans.”

“It is apparent that Americans overwhelmingly favor clean and renewable energy,” said Steve Sanders, director of the Appalachian Citizens Law Center, which co-released the survey findings in Kentucky with the Civil Society Institute and KFTC. “For Kentucky, that means we must plan now for a future which is much less dependent on coal as a source of electric power.”

Nearly as many respondents (75 percent) agreed that “Congress and state public utility commissions that regulate electric utilities should put more emphasis on renewable energy and increased energy efficiency … and less emphasis on major investments in new nuclear, coal and natural gas plants.” This included 58 percent of Republicans, 84 percent of Independents, and 86 percent of Democrats.

“These results show that people all over the country want clean energy and it’s time for Kentucky to catch up with other states to make cleaner energy affordable and accessible to people who want to invest in that,” said Amanda Fuller, a KFTC member in Louisville.

“Renewable Portfolio Standards and feed-in tariffs are two initiatives that we can do right now that don’t cost our state any money,” Fuller pointed out. Those initiatives were included in the Clean Energy Opportunity Act, legislation that received a hearing but no vote in the recently adjourned session of the Kentucky General Assembly.

Seventy-seven percent of respondents agreed that “(t)he energy industry's extensive and well-financed public relations, campaign contributions and lobbying  machine is a major barrier to moving beyond business as usual when it comes to America’s energy policy.”

“We’re losing jobs,” Fuller said, noting that the contractor who installed solar electric and solar hot water systems on her house is challenged to find enough work to stay in business. “There are skilled people who have the technical backgrounds who are out of work because we don’t have the policies that support clean energy.”

An independent study released in January concluded that passage of the Clean Energy Opportunity Act would result in 28,000 new jobs in Kentucky over the next 10 years.

The clean energy survey was conducted by phone March 22-25 by ORC International for the Civil Society Institute. Respondents were 506 men and 513 women 18 years of age and older.

The questions went well beyond a simple "Do you favor or oppose ____ policies" often taken in such surveys, explained Pam Solo, president of the Civil Society Institute. She said the results show how deeply Americans understand what's at stake in our energy decisions.

A report with the survey findings is available here.

KFTC joined a nationwide coalition of groups to sue the U.S. Environmental Protection Agency. The legal action, filed late yesterday, is designed to get the EPA to finalize rules to prevent public exposure to toxic coal ash.

EPA has delayed the first-ever federal protections for coal ash for nearly two years despite growing evidence of leaking ponds, poisoned groundwater supplies and threats to public health. A recent independent analysis of EPA data added 30 more power plants in 16 states to the list of coal ash dump sites with contaminated groundwater.

“The number of coal ash ponds and landfills that are contaminating water supplies continues to grow, yet nearby communities still do not have effective federal protection,” said Earthjustice attorney Lisa Evans, who filed the lawsuit for 10 local, statewide and national groups. “It is well past time the EPA acts on promises made years ago to protect the nation from coal ash contamination and life-threatening coal ash dumps.”

In Kentucky, there are 44 coal ash disposal sites located at 17 coal-burning power plants spread across the state. They are used to dispose of more than 9 million tons of toxic coal wastes produced annually, the fifth highest total in the nation.

According to a 2007 EPA risk assessment, 10 of the ponds and landfills in Kentucky are unlined. Of these unlined sites, eight have no leachate collection systems and five have no groundwater monitoring systems. Eight ponds are rated “high hazard.” Six are rated “significant hazard.” Nineteen are not yet rated. Many (20 0f 43) were not designed by a professional engineer, and most (27 of 43) were not constructed by one.

The coal ash ponds in Kentucky have significant problems:

• Groundwater monitoring at the Louisville Gas & Electric Mill Creek Station found arsenic, sulfate and total dissolved solids exceeding federal standards in a contaminant plume one mile wide, potentially endangering off-site use of shallow drinking water wells. EPA reports pond at the Mill Creek Power Station has “major structural integrity issues.”
• The East Kentucky Power Cooperative coal ash landfill at the Spurlock Power Station (Mason County) has contaminated groundwater since at least 2005 with arsenic, iron, sulfate and TDS. Arsenic has reached 16 times the drinking water standard in an off-site well. The disposal site discharges to three receiving streams that flow into the Ohio River.
• Onsite groundwater at the TVA Shawnee Fossil Plant (McCracken County) is contaminated with arsenic, boron, selenium, sulfate and TDS exceeding federal standards and health advisories.
• An estimated 300 tons of sulfate per year was leaking into the Ohio River from the Duke Energy East Bend Scrubber Sludge landfill (Boone County). EPA found on-site exceedances for total dissolved solids, iron, and sulfate.
• Leaks, seepage or on-site contamination has been found at the Tyrone (Woodford County), Dale (Clark County), E.W. Brown (Mercer County), Paradise (Muhlenberg County), R.D. Green (Webster County), D.B. Wilson (Ohio County) and Trimble County power plants, according to the U.S. EPA and the Kentucky Division of Water. Data is not available for all power stations.
• There have been numerous off-site releases of coal ash dust from the Cane Run Power Plant (Louisville), with documented contamination of homes in surrounding residential areas. LG&E wants to expand this landfill.
  

"Here in Louisville we are having problems with dust discharges from one of our big coal-burning power plants," said KFTC member Mary Love. "Our local Air Pollution Control District is doing what it can to force the power company to keep our air safe to breathe, but without federal standards on the hazards of coal ash, there is only so much they can do."

Today’s lawsuit seeks to force the EPA to set deadlines for review and revision of relevant solid and hazardous waste regulations to address coal ash, as well as the much needed and overdue changes to the test that determines whether a waste is hazardous. In January, the groups gave EPA 60 days notice of their intent to sue if nothing was done.

While our Economic Justice committee and state wide members were raising their voices (and yard sale prices!) for fairer taxes and a balanced budget at the Capitol today, high schoolers in Hazard were learning and talking about their reproductive health, most for the very first time.  While attending the first ever East Kentucky Reproductive Health Fair, over half a dozen 17 and 18 year olds registered to vote at our Perry County KFTC booth, taking the first step in adding their voices to our region, state and country's future.  One Hazard High School 16 year old even volunteered to help register others this summer, since she could not register herself! 

Keeping with the theme of the fair, we distributed almost 50 fact sheets on the health impacts of mountaintop removal mining and talked with folks about the recent health studies examining increased birth defects and cancers in our region. 

The health fair was sponsored collaboratively by the East Kentucky Reproductive Health Project (EKRHP) and the HCTC Diversity Club.  Perry Chapter member and HCTC professor, Jenny Williams helped to navigate the students through the fair and breakout sessions and welcomed them to explore, share, and learn.   

Issues of reproductive health don't exactly frequent the classrooms of public schools in east Kentucky and elsewhere, so today's discussions, whether assisting a power point or just between friends, were steps in the right direction.  One breakout session with EKRHP screened a film by the Appalachian Media Institute, Every Six Days, exploring teen pregnancy and the incidence of teens becoming pregnant in Letcher County.  Another session by the Kentucky Health Justice Network described reproductive life planning and Planned Parenthood distributed over 500 condoms by the end of the day.   Among several others, our friends at the Kentucky Environmental Foundation were also there with information about water and air quality, as well as the health impacts of various energy production methods and toxins from products we use everyday. 

Wilson Creek residents are looking to state officials to find new ways to protect their land, water, health and community after a Kentucky Court of Appeals panel struck down restrictions on any strip mining that would take place there.

In a ruling issued Friday, the panel voided a state regulation that the Kentucky Energy and Environment Cabinet relied on to issue those protections. The judges remanded the case back to the cabinet.

Wilson Creek resident Bev May said the ruling was disappointing because the protections the community were counting on are now put on hold while residents and the cabinet review their next steps.

"We're going back and ask the cabinet to keep its commitment to protect our community," said May. "We are determined as ever that we're not going to be abused. We still have our rights under the broad form deed amendment and still have our promise from the county judge to not let them use Wilson Creek as a haul road."

The effort dates back to 2006 when Wilson Creek residents learned that Miller Brothers coal company was trying to buy leases so that it could strip mine along both sides of the watershed simultaneously, and use the community's only access road as its haul road. Residents organized, and among the actions taken was to file a petition with the environmental cabinet to have the Wilson Creek watershed declared "unsuitable for surface mining."

In an early 2009 decision, the cabinet did not grant that petition, but did say that any mining of the area had to meet certain restrictions. Those restrictions were:

•  the coal company could not haul coal on the one-lane Wilson Creek road.
• that any mined land needed to be returned to its approximate original contour, and
• the land needed to be reforested to prevent flooding.

Even though these were reasonable conditions and reflected existing law, Miller Brothers filed a lawsuit, arguing on one hand the state only has the authority to rule either in favor or against a Lands Unsuitable petition, and on the other hand there was not enough evidence to support the need for the added restrictions to mining in Wilson Creek.

Miller Brothers and its successors (the company is now part of James River Coal) appealed that decision, first with the cabinet and then to Franklin Circuit Court. Both upheld the protections.

In reversing those rulings, the Court of Appeals did not address the validity of the protections themselves, but the process by which the cabinet issued them. They ruled that federal law allows a Lands Unsuitable petition to be either granted or denied, and for restrictions to be applied only if the petition is granted.

Granting restrictions on future mining without an unsuitability determination goes beyond the authority of  federal law, and the Kentucky General Assembly has forbidden state law from being more stringent than federal law. Therefore, the regulation the cabinet followed, the appeals court panel found, is "null, void and unenforceable."

"The procedural  flaw was in not first declaring the watershed unsuitable for certain types of mining before issuing the restrictions," May explained.

For the short-term, that may mean more legal wrangling. But, as May pointed out, the community still has a pledge from the Floyd County judge-executive to not grant a waiver for Wilson Creek to be used as a coal-haul road. And under the 1988 broad form deed amendment to the Kentucky constitution, landowners can refuse to allow strip mining on their property.

Some, if not all, of the protections the cabinet intended to use on future mining may still be applied for any individual permit that James River Coal may seek.

"The cabinet listened to the concerns of residents and took those concerns seriously enough to provide some modest protections for the community. They had the right intention but the process was flawed. Now they have an opportunity to go back and fix that problem, and we're counting on them to do that."

Wilson Creek residents and the Floyd County KFTC Chapter are represented in this case by the Appalachian Citizens Law Center.

Find a copy of the Appeals Court ruling here.

This year at I Love Mountains day we are using homemade pinwheels to share our message of calling for an end to mountaintop removal and transitioning to a clean energy economy.  We are asking everyone coming to I Love Mountains day to bring one pinwheel. 

Then we will deliver each of our pinwheels to Governor Beshear at I Love Mountains.  With 1,2000 of us estimated to attend, each pinwheel will represent 50 people living with cancer that has been linked to the pollution from mountaintop removal mining.   Click here to learn about the study that came out in July that found that 60,000 people living in Central Appalachia have cancer because of mountaintop removal.  So, 1,200 pinwheels x 50 = 60,000. 

But the pinwheels are also a beautiful way to visually demonstrate the hope that we all have for transitioning to a new, clean energy economy that can bring good jobs and cleaner air and water to our state!  What better way to share our message and help the Governor understand what is at stake! 

Will you join us by making and bringing a homemade pinwheel with you at I Love Mountains day?  We hope you will!  Here is a link to some super simple instructions!  And if you do, leave us a comment here to let us know how it goes!  But also don't worry if you can't make a pinwheel, we will have a few extras to share that day!

An editorial in today’s Lexington Herald-Leader urges Governor Steve Beshear to consider the homes and health of people in Benham and Lynch before allowing destructive surface mining there.

According to the article, two coal operators and their associates spent more than $500,000 to get Beshear re-elected last fall – the largest private-sector donors to Beshear’s campaign.

One donor, James C. Justice II of A&G Coal, plans to mine near Benham and Lynch, threatening the community’s water supply and quality of life. The Beshear administration has given preliminary approval. From the editorial:

With coal money talking so loudly and directly into his ear, the governor should try extra hard to hear average Kentuckians whose homes, health and future are imperiled by the coal industry’s most destructive practices.

The ridges that cradle Lynch — and are at risk of being destroyed — are part of Black Mountain, Kentucky's highest point, which school children fought to save from strip-mining in the late 1990s.

You can’t put a price tag on the history and possibilities that will be lost if Beshear sacrifices this little corner of Kentucky.

The other donor, James Booth of Cambrian Coal, has a permit to mine in Pike County that a judge attempted to block before Beshear’s Energy and Environment Secretary Len Peters overruled him and allowed the permit to go through.

Cambrian’s plan to chop 400 feet off a mountain near Elkhorn City in Pike County will pollute tributaries of the Russell Fork that were already seriously degraded by earlier mining.

The editorial follows an analysis of campaign contributions in The Courier-Journal by Tom Loftus. To read that article, click here.

To read the full Lexington Herald-Leader editorial, click here.

To learn more about Benham and Lynch residents’ efforts to protect their community, click here.

KFTC and several of our allies are challenging an agreement the Beshear administration negotiated in secret with Nally & Hamilton coal company to resolve thousands of violations of the Clean Water Act.

“There are so many loopholes in this secretly crafted document, it becomes strikingly offensive to anyone the least bit familiar with Clean Water Act rules” said KFTC member Suzanne Tallichet. “This Agreed Order represents business as usual between cabinet officials and a scofflaw coal company, literally at the expense of citizens’ lives and well-being,"

The case involves incomplete and false water pollution reports Nally & Hamilton filed with the Kentucky Energy and Environment Cabinet over a two-and-a-half-year period. These reports were literally collecting dust in state offices before they were exposed by Appalachian Voices. In March, KFTC, Appalachian Voices, Kentucky Riverkeeper and the Waterkeeper Alliance informed Nally & Hamilton of their intent to sue in order to stop the violations and the related pollution of waterways in eastern Kentucky.

Cabinet officials, who had previously ignored these reports, in May filed an administrative enforcement action against the company, alleging 4,600 violations rather than the 12,000 originally cited. It seems that the cabinet did this in an effort to protect the company by trying to pre-empt a federal lawsuit the groups planned to file. The administrative action had no preemptive effect under the law, however, and the groups filed the federal suit anyway.

We also asked to intervene in the cabinet's administrative proceeding, and in July the hearing officer granted the groups intervenor status, as full parties in the case. However, cabinet officials ignored the hearing officer's strong encouragement to include intervenors in settlement negotiations and negotiated a settlement with Nally & Hamilton without notifying or involving the intervening parties.

"They ignored the hearing officer’s order giving us intervenor status and negotiated a secret agreement that does little to protect our people or prevent future violations,” said Pat Banks of Kentucky Riverkeeper in a press release issued by the groups. “Our people are shocked that the cabinet chooses to protect companies that are polluting our land and water and breaking the laws thousands of times rather than protect the health and well-being of Kentucky’s land and people.“

The petition filed Thursday in Franklin Circuit Court asks that the agreement between Nally & Hamilton Enterprises and the Kentucky Energy and Environment Cabinet be vacated on the grounds that there is “no factual evidence in the record, much less substantial evidence, [that] supports a finding that the Agreed Order is a fair resolution of Nally’s thousands of [Clean Water Act] violations, or that it will be an effective deterrent of future violations.”

Nally & Hamilton Enterprises, based in Bardstown, is one of the largest producers of strip mined coal in Kentucky. Several principal officers and employees of Nally & Hamilton and their spouses contributed $6,000 to Beshear’s re-election campaign on July 21, just two weeks after the citizens groups were allowed to intervene in the case, according to the Kentucky Registry of Election Finance.

"Citizens living in coal-impacted communities deserve much better from a taxpayer supported state agency that is supposed to be diligently protecting people over corporate profits,”said Tallichet.

MEDIA COVERAGE

• Ronnie Ellis: Environmental coalition wants agreement vacated
• Lexington Herald-Leader: Environmentalists contest coal company settlement
• Erica Peterson, WFPL-FM: Environmental Groups Petition to Overturn “Inadequate” Coal Settlement