The current situation is no longer defensible. Government is failing to protect our water. Big industry and business is failing to protect our water. Collectively, regular citizens are failing our own communities and fellow residents by failing to demand better of government, industry, and each other. How long will this go on? How long until we finally say enough is enough? We say now.
By now, the story has been told many times over. On January 9th, chemical storage tanks at Freedom Industries’ facility in Charleston, WV, leaked into the Elk River, and contaminated the drinking supply of 300,000 West Virginians. Initial estimates suggested a few thousand gallons of 4-methylcyclohexane methanol (MCMH) leaked. Then, that number increased to 7,500 gallons. Then, the company told the state another chemical mix of glycol ethers, abbreviated as PPH, was present. Next, the spill estimate increased to over 10,000 gallons. Weeks later, questions continue to arise regarding the details of the spill and complaints abound regarding drinkability of the water and skin irritations. Many asked, could it happen here in Kentucky?
Old storage tanks may change ownership, from time to time, the chemicals stored within them may also change, with sometimes very lax – or nonexistent – oversight and record-keeping. The permits intended to protect against such a spill are rarely denied by regulators in most states. Even when we know the chemical in the storage tank, we don’t know much about the chemical itself. Industry currently has over 80,000 chemicals registered and in use, but only about 200 (less than one-quarter of a percent) have been tested by EPA due to resource limitations, yet some think EPA does too much. Often, the Material Safety Data Sheet (MSDS), intended to provide the range of chemical and physical data for a chemical, is vastly insufficient. Chemicals are usually tested on rats, in lab settings. For a great many chemicals, not much is known about how the chemical might react with other contaminants in our streams, or in other conditions outside of controlled laboratory settings, and how the impacts to humans differ between chronic and acute exposure.
300,000 to 500
This state of affairs is about much more than the 300,000 people affected in West Virginia. The primary chemical in these tanks, MCMH, is used to process freshly-mined coal. Along with other chemical agents, it helps remove impurities from coal to make it more potent for burning. Once this process is complete, the coal gets moved to its destination. The leftover mix of “stuff” from the cleaning process is generally referred to as “coal slurry.”
Mostly, coal slurry gets dumped into impoundments or ponds, typically nearby the processing facility. Usually these ponds are high up in valleys, or hollows, overtaking areas that were once beautiful headwater streams. There are around 115 impoundments in Kentucky – and upwards of 500 in Appalachia. They look like death – seriously. Gray – maybe black – water, sometimes frothy, full of awful chemicals and heavy metals – some of which are toxic, some of which we know very little about – these impoundments are ticking time bombs. Just ask the folks in Martin County, Kentucky. In 2000, the impoundment failure there sent over 300 million gallons of slurry downstream and into the landscape and town. It left a disaster 30 times larger than the Exxon Valdez spill in Alaska.
You could also ask the folks in West Virginia, who just experienced yet another coal slurry spill from a processing facility.
Coal slurry impoundments are not indestructible – in fact, they will fail, and will pollute our waterways and communities. Yet, our government continues to allow these to be constructed at the risk of the public’s health and our waters. Why? Should industry not be responsible for developing methods to reuse or eliminate their own waste stream? Should government not be protecting the health of our citizens, and not the pockets of industry?
The chemical industry is just the first chapter of this inconceivable, but very real, page-turner. Burning of coal has provided energy to our nation for well over a century. But science and medicine has caught up. At the national and global scale, the act of burning coal has led to widespread air pollution and health issues, as well as climate change. At the source of extraction, coal operations are both ongoing and looming threats to our waters and the health and safety of our communities.
In Kentucky, and other parts of Appalachia as well, surface coal mining itself has been wreaking havoc on our environment and our streams.
The U.S. Army Corps of Engineers and the Kentucky Division of Mine Permits have authorized thousands of miles – no exaggeration – of streams to be removed or buried for surface coal mining projects. To replace these impacts, the public is promised restoration elsewhere – sometimes, over 60 miles away. It may not even be restoration or creation. It may only be enhancement or protection. Don’t be mistaken – we certainly need to protect streams and riparian buffers. But these projects should occur where they are needed, and not almost exclusively where they are most convenient.
Meanwhile, permitting continues, and water quality impacts continue to pile up. Sediment ponds at operating mine sites, intended to hold and store stormwater runoff from the site, constantly spill over into streams after bigger storm events. Valley fills permitted by the Corps and state agencies leach toxic levels of pollutants.
Slurry impoundments sit quietly, though they hold back a mountain of pollution. The hydrologic and ecologic systems are being entirely disfigured. Many headwater streams are effectively dead. Citizens of Appalachia have cancer rates suggestive of chronic water and air contamination.
Lately, there’s been talk of an alternative economic future for eastern Kentucky’s coal region. If the status quo continues much longer, the destruction there will prevent any possibility of a meaningful future. How is it possible that our government has been a willing participant in this tragedy of the commons? How have fellow Kentuckians allowed this economic and environmental injustice to continue?
For the longest time, the destruction associated with surface mining was limited to Kentucky’s coal regions. Now, a new extraction industry has moved to the state. In Spring 2013, a company proposed a tar sands surface mining project down in Logan County, between Russellville and Bowling Green. Tar sands mining can be as equally destructive to the land and water as surface coal mining. The geologic formations down there contain a sandstone with rock asphalt intermixed naturally. This is what the company wants to remove – but they have to peel back the landscape to get to it. The company that proposed the projects, and has since begun mining, suggested it will use new technology that will reduce the cumulative environmental footprint of the project. This technology is intended to result in a “hydrocarbon free” waste stream. But it still requires destruction of streams and wetlands. The mining process still uses basic sediment ponds to “prevent” pollutants and sediment from flowing into adjacent streams. Will Kentucky become victim to another industry that cares not for our waterways and water resources? Will Kentuckians be the victim of a new technology that still requires destruction of streams and wetlands?
500 to 5 million
Downstream of the coal slurry impoundments, downstream of the continued degradation being permitted in the coal fields of Appalachia, the Ohio River provides drinking water to some 5 million people. Cities like Wheeling, Huntington, Cincinnati, Louisville, and Evansville depend upon the Ohio. Yet, the Ohio has the highest levels of toxic pollution of any river in the country. The Clean Water Act was passed 42 years ago. Certainly, the Ohio is not nearly the pot of raw sewage and remains from pork processors that it was years ago. Still, our government continues to allow industry and economic interests to trump public and environmental health.
The Ohio isn’t just contaminated with pollution related to coal mining. A number of factories sit on the banks of the Ohio and discharge wastewater into “mixing zones” on a daily basis. The problem? That wastewater still includes toxic cancer-causing pollutants, like mercury. Yes, this is still allowed, 42 years after the Clean Water Act. Why? Good question.
The Ohio River Valley Water Sanitation Commission (ORSANCO) sets limits on a range of pollutants, including mercury, for the Ohio and its tributaries. ORSANCO is not a governmental entity, but it is composed of government representatives from eight states in the Ohio River Basin. Back in 2003, ORSANCO made a move to ban mixing zones for toxic pollutants like mercury. The mixing zone ban would have gone into effect in ten years, or October 2013. It was a good move, in the minds of many, and the time frame provided states and industry enough time to make the necessary changes. But after passing that ban, things began to change.
First, the commission make-up shifted. Industry representatives began to have a voice on the regulation of the very same pollutants coming from their facilities. To make matters worse, certain states failed to include the ban on mixing zones in their own state regulations. Further, the states themselves failed to ensure through permits that facilities were taking necessary steps to come into compliance with the upcoming ban.
Then, in 2010, ORSANCO decided that an all-out ban on mixing zones was perhaps heavy-handed, so they created a variance procedure. In 2011, they received the first variance request, which they granted in 2012. A short time later, ORSANCO realized there might be up to 57 other facilities unable to meet the mixing zone ban, and which may each need a variance.
As if these series of events were not enough, ORSANCO refused to list the Ohio River as impaired for mercury levels in fish tissue, even though data suggested that to be the case. ORSANCO even went against EPA-recommended methods for determining whether fish in the Ohio have acceptable levels of mercury for human consumption. The method ORSANCO chose to use provides more wiggle room for industry and less protection for aquatic life and for human health. Why is ORSANCO attempting to dismantle and provide even less protection for water quality, aquatic life, and the public’s health? Better yet, how are we, the public, allowing this to occur?
Stop Fracking Around
For the Ohio River, it gets worse. Hydraulic fracturing, or fracking, has boomed over the last few years in Pennsylvania, and now Ohio and parts of West Virginia. It’s even happening in isolated (for now) parts of Kentucky (Fun fact: Kentucky has had nitrogen-based shale fracturing occurring in the state for a number of decades now). While hydraulic fracking has been booming, an industry-backed provision of the federal Energy Policy Act of 2005, has allowed fracking to be exempt from coverage under parts of the Safe Drinking Water Act and the Clean Water Act, as well as a number of other federal laws intended to protect the public’s health. The fracking industry makes all sorts of bold claims about safety, but the truth on fracking has been seeping out, little by little – like contaminated private wells, methane coming out of faucets, and streams with unusually high levels of radioactive isotopes. Many of these problems correlate to failed well casings, but fracking’s problems are not restrained to just the extraction of natural gas at the well.
Fracking has two primary byproducts. First, the process produces “natural gas liquids,” or NGLs, which are composed of a number of different liquified gases that are classified as hazardous liquids. NGLs are entirely different from “liquified natural gas,” or methane, which is used to heat homes. NGLs can be used by industry, mostly overseas, to create plastics and other polymers. Right now, the market is Asia, and the export point is Louisiana and Texas. Companies are chomping at the bit to build new pipelines, like the Bluegrass Pipeline. They want to get their piece of the proverbial pie. Their desire to build, combined with relentless lobbying efforts, is pressuring our regulatory agencies and elected officials. Should officials do their job, and protect the public, our land, and our resources? Or, should they be amenable to industry?
The second byproduct of fracking is the wastewater, or “flow-back” fluid. Typically, this amounts to 20-40% of the water-frac fluid mix that gets pumped down to fracture the shale, which usually ends up being around a million gallons or more per well. The EPA has this to say on fracking wastewater:
“Wastewater associated with shale gas extraction can contain high levels of total dissolved solids (TDS), fracturing fluid additives, metals, and naturally occurring radioactive materials….no comprehensive set of national standards exists at this time for the disposal of wastewater discharged from natural gas extraction activities. As a result, some shale gas wastewater is transported to treatment plants (publicly owned treatment works (POTWs) or private centralized waste treatment facilities (CWTs)), many of which are not properly equipped to treat this type of wastewater.”
On average over the last five to six years, fracking in Pennsylvania alone produced upwards of a billion or more gallons of wastewater annually. To get a sense of scale, that’s over 1,515 Olympic-sized swimming pools. Estimates suggest Texas fracking produces over 250 billion gallons annually. What is to be done with all this untreatable wastewater, then?
Well, at first, the industry was dumping it in local waterways. That didn’t continue very long, of course, because it’s completely illegal. Then, they started taking it to local wastewater treatment facilities. But operators and EPA realized that those facilities couldn’t treat this witches brew. Lately, the industry has been either storing it in massive tanks (not unlike those used for the chemical that spilled in Charleston) or industry has been utilizing new and existing deep underground injection wells to send the wastewater down beneath layers of geology. Basically, they’re trying to hide it. In theory, the geologic formations that this wastewater is injected down into are separated from drinking water aquifers. However, faulty well casing construction, combined with evolving understanding of geology, suggests these deep wells may not be preventing contamination of drinking water sources. Even worse, the U.S. Geological Survey suspects that the increased rates of deep injection of wastewater are linked to significantly increased rates of minor earthquake activity in some states.
It seems that the injection of wastewater may be both increasing underground pressures on rock formations and possibly causing cracks, as well as greasing the fault lines.
The wastewater keeps piling up, though. It has to go somewhere because the industry needs to keep fracking. There’s a bottleneck in the system – and apparently, government needs to help solve the industry’s problem. Recently, proposals have moved forward for wastewater processing plants, like one for Wheeling, WV just a mile upstream of the city’s water intake (this sounds familiar). Ultimately, industry still need to move certain amounts of wastewater, even with new processing facilities. Now, a third solution is being pushed by the industry: barging the waste on the country’s rivers to desirable disposal locations in other states, radioactivity and all.
The U.S. Coast Guard is the federal agency that oversees the transport of goods on interstate waters. In late 2013, the Coast Guard published a “proposed policy letter” for public notice that would allow barging of fracking wastewater. The policy letter, though, is not a regulation. It serves as guidance for the Coast Guard. It includes a whole lot of passive language about procedure, without a lot of certainty and reasonable assurance that the nation’s waterways and the public’s health will be protected. The worst part? The Coast Guard suggested that this policy letter was not subject to the National Environmental Policy Act, and all that it entails. Why? The Coast Guard uses the following reasoning for that exemption:
“this policy will not have any of the following: significant cumulative impacts on the human environment; substantial controversy or substantial change to existing environmental conditions; or inconsistencies with any Federal, State, or local laws or administrative determinations relating to the environment.”
That means no Environmental Impact Statement, the primary vehicle for analyzing all the human and environmental health risks associated with a federal action, and determining whether the action is necessary and in the public’s interests. Why would the Coast Guard not go through the formal rulemaking process? Why would they avoid an EIS? Better yet, why even consider this proposal to begin with? If industry wants to frack, why not make them figure out a legitimate solution to fracking wastewater, aside from moving it somewhere else to hide it? Why is the burden on the government and the public’s health, and not on industry?
The Hazardous Liquids Bluegrass Pipeline
Last summer, word broke that two companies, Williams Company and Boardwalk Pipeline Partners, were partnering to build a pipeline to carry NGLs from Ohio, Pennsylvania, and West Virginia down to processing facilities in the Gulf. In a bit of foresight on the importance of Kentucky to the pipeline’s fate, they decided to call it the Bluegrass Pipeline. Little did they know that they were facing a steep uphill climb in the Bluegrass State.
Many have heard the story by now. Company representatives and contractors have infiltrated the rural areas of the counties on the route, attempting to get permission to survey, and arrange easement acquisitions. Threats of the use of eminent domain have led to much tension and mistrust, and have fed a discussion regarding Kentucky statutes. Finally, over the last several months, the Kentucky Legislature began taking steps to revise statutes and ensure protection of private property rights.
But it’s more than private property rights – this is about our waterways, too. The proposed alignment for the pipeline includes hundreds of stream and wetland crossings in Kentucky, not the least of which are the Ohio, Licking, Kentucky, and Rough Rivers.
At each crossing, the stream riparian buffer, or trees, shrubs, and grasses adjacent to the stream, would have to be cleared for a width of 50 feet and remain that way until the pipeline is no longer in use. Because streams need riparian vegetation to remain healthy ecosystems, the pipeline would be an assault on the health of many stream segments in Kentucky.
Perhaps equally as disturbing, the 24-inch pipeline will be full of the NGLs, which are both a human health hazard, and highly explosive. The pipeline will pass over a number of karst, or cave and sinkhole-prone areas.
It is only a matter of time before this pipeline ruptures; all pipelines do, at some point – even new ones are failing around the country. According to recent research by the Wall Street Journal, even with all the high-tech monitoring equipment, only 20% of leaks are caught by pipeline operators. The other 80% are detected by physical evidence of a leak. Even in the instances of detection by the operators, leaks can go on long enough to cause significant impacts before the pumps are shut off. A 20% on an exam sure wouldn’t cut it in U.S. classrooms. Why is that acceptable for a multi-billion dollar industry? How long do we perpetuate a false concept of safety?
Thankfully, a steadily growing group of citizens have stood up in opposition to the pipeline and the companies involved. These citizens are not just a group of wildly environmentalists. They are mostly regular folks, who own land out in the beautiful rolling hills of the Bluegrass, who thought private property rights would protect them against the interests of private business, and who have taken the time to research the facts regarding the pipeline and all of its impacts. They have undeniably relevant concerns about their property and the long-term value of their land in the case of an eventual pipeline rupture. But they also have relevant concerns about the water quality impacts from construction and from any eventual leaks. They’ve written op-eds and letters to the editor. They’ve contacted their neighbors. They’ve called their county Judge Executives, and contacted and met with their representatives in Frankfort. We need more people like this – people who spend the time, educate themselves, ask questions, give due diligence to legitimate issues, and then speak up.
When Does It End?
The question lingers: can the Charleston spill happen here? Absolutely. In fact, a spill is likely to happen here, there, or anywhere. And it’s not just about the particular situation in Charleston. North Carolina residents just recently became victims of an awful spill of toxic coal ash into the Dan River. West Virginia had yet another accident that spilled toxic coal slurry into a tributary of the already affected Kanawha River. Even agricultural operations around the state and country pollute waterways with excess nutrients and with manure from animal feeding operations.
As long as we continue to perpetuate a false reality of safety, it will happen. As long as we continue to perpetuate a system that permits a range of industrial operations with clear environmental and human health impacts, it will happen. As long as government agencies charged with enforcement of laws are both under-funded and influenced by political processes, it will happen. As long as the public’s health and our environment’s health, which we are fully dependent upon, are at the mercy of economic and business interests, it will happen.
Kentucky’s regulatory programs and agencies need funding. The Governor again proposed a budget cut of 5% to most state agencies, including the Division of Water (DOW). According to DOW’s 2012 Annual Report, they have reduced their employees by 11% since 2003 – a loss of 31 positions.
Kentucky’s regulatory agencies also need to be allowed – better yet, encouraged – to do their job. DOW’s job is not to provide customer service to clients. DOW’s job or mission is “to manage, protect and enhance the quality of the Commonwealth’s water resources for present and future generations through voluntary, regulatory and educational programs.” Given the continued decreases in funding and employees, and combined with political and business influences, DOW focuses time and efforts on certain programs and components. This certainly prevents them from being capable of carrying out their full mission and responsibilities, and allows the public’s health and our water quality to continue to be put at risk.
Will you blame DOW for the next accident in Kentucky that impacts our water? Will you blame the politicians for contorting the system to support industry? Industry for failing to maintain and update their facilities, or failing to care for the public’s interests and the health of the environment? Yourself for supporting tax breaks and dwindling budgets? Or, perhaps all four?
We have very real structural deficiencies in our government, failure by big industry and business to care for the common citizens, and failure by citizens to get involved and be aware of the problems around them, everyday. The longer we pretend that we can’t do anything about it, or that we need jobs more than a clean environment, or that we need this, that, and the other, the deeper hole we will have dug. The fact of the matter: we all need clean water, we all depend on it – business, industry, government, citizens – every last one of us.
The Clean Water Act was intended to protect us and our waters from the myriad of potential impacts, but the Act needs help from all of us to ensure it actually provides the protections promised to us for decades to come. The Act was a groundbreaking law, not just because of its overarching goals, but because it was written to encourage public participation and input on different programs. It provides ample opportunity for citizens to get involved and comment on proposed projects that require permits for impacts, and to make sure businesses are fulfilling their responsibilities once permitted. There are opportunities for citizens to learn about, monitor, and work towards restoration of their local watersheds. The Act even allows for citizen lawsuits to ensure protection of our health and resources.
The Act is also 42 years old, though. We’ve learned a lot in 42 years. Scientific understanding of water quality impacts has advanced tremendously. The Clean Water Act needs to be amended to meet the advances in knowledge and science. No, that doesn’t mean scaling back. It means revising the Clean Water Act so that we are able to achieve the original goal of the Act – “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
There are several areas where the Act needs improvement. First, it needs to be refocused on the “precautionary principle.” The presumption that new (or old) chemicals and technologies are safe until proven otherwise has run its course. Industry and businesses must bear the burden of providing unquestionable evidence that an action or pollutant will not be harmful to water quality and the public’s health. Further, industry, rather than government, should be responsible for developing technology or processes that reduce or eliminate hazardous waste outcomes, and eliminate impacts to the ecosystem that have any negative effect on water quality and human health. Another fundamental problem, which was addressed by a recent Government Accountability Office report, is the lack of regulatory authority, structure, and controls for nonpoint source pollution. Because nonpoint sources of pollution, like stormwater runoff from urban areas and agricultural field runoff, remain such a significant contribution to the continued impairment of our nation’s waters, it will be difficult for EPA and state agencies to advance the country’s waters towards restoration without authority to regulate those sources. These concerns are just a few ways to improve the Clean Water Act, and sufficiently protect and sustain our waterways, water quality, and human health for generations to come.
None of this will happen, though, if citizens don’t demand it. Kentucky Waterways Alliance, and other organizations across the country, advocate on behalf of all citizens for the protection and restoration of our waterways. But we truly can’t do it alone – the people of this country must stand up and fight for the protection we all deserve. Become a member and learn more about the variety of ways the Clean Water Act still needs to be sufficiently enforced and improved to protect water quality and human health. The citizens of this Bluegrass State must stand up and demand better of our elected officials, demand better of businesses and industries, and demand more action from all citizens. Demand that the public’s interests are protected and defended – not sold to the lowest bidder. Do not give in to the false choice of economy or environment. Demand both. We need every last one of you – your family, friends, and neighbors – to advocate for a change in the “business as usual” environment that is pervasive in America at present.
No clean water, no life.